Appendix — Duffey v. Hartman
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961522 MAR 24 1997
Np OF THE CLERK
In the Supreme Court of the Giited States
OCTOBER TERM, 1996
JOSEPH DUFFEY, DIRECTOR,
UNITED STATES INFORMATION AGENCY, PETITIONER
v.
CAROLEE BRADY HARTMAN, ET AL.
ON PETITION FOR A WRIT OF CERTIORARI
TO THE UNITED STATES COURT OF APPEALS
FOR THE DISTRICT OF COLUMBIA CIRCUIT
APPENDIX TO
PETITION FOR A WRIT OF CERTIORARI
WALTER DELLINGER
Acting Solicitor General
FRANK W. HUNGER
Assistant Attorney General
SETH P. WAXMAN
Deputy Solicitor General
PAUL R.Q. WOLFSON
Assistant to the Solicitor
General
MARLEIGH D. DOVER
IRENE M. SOLET
Attorneys
Department of Justice
Washington, D.C. 20530-0001
(202) 514-2217
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TABLE OF CONTENTS
Page
Appendix A (court of appeals’ opinion, July 19,
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Appendix B (district court order granting class
certification, April 19, 1978) .....cccvcrssecesssreressssosserenee 15a
Appendix C (district court order dismissing case on
the merits, Octane? BE, OTB) ..cccccocsccocceccccscosecesscoses 17a
Appendix D (court of appeals’ opinion, August 27,
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Appendix E (district court opinion on merits,
Rea Bes ED sek tette cidanseiapccintaeanintabiceneinncarcionss 79a
Appendix F (district court opinion and order on
remedies, January 19, 1988) ..........scssessssesserseresessers Illa
Appendix G (district court order denying recon-
sideration on remedies, April 15, 1988) ..............0. 18la
Appendix H (further district court decision on
PORE, FUT Wi: SN. cateahsctosninitseciivnatestioraneninineiese 190a
Appendix I (court of appeals’ opinion remanding for
further proceedings on class certification,
POE TG, TOG) wecciesetisessansnieastiicechaserniibiessiovibisannininaetacnss 208a
Appendix J (district court decision on class certifi-
Cation, November 23, 1994) ......ccccscrsssscererssrssscrconsess 246a
Appendix K (court of appeals’ order denying sug-
gestion of rehearing en banc, October 23, 1996) ... 3lla
Appendix L (court of appeals’ order denying petition
for rehearing, October 23, 1996) ..........:.ssssesessereers 313a
Appendix M (42 U.S.C. 2000€-16) ...........sssssccssseeesseeeeees 315a
Appendix N (Fed. R. Civ. P. 23) ........scssssssesssssssseesesenes 320a
(I)
APPENDIX A
UNITED STATES COURT OF APPEALS
FOR THE DISTRICT OF COLUMBIA CIRCUIT
No. 95-5030
CAROLEE BRADY HARTMAN, ET AL., APPELLEES
Uv.
JOSEPH DUFFEY, DIRECTOR, UNITED STATES
INFORMATION AGENCY, APPELLANT
Appeal from the United States District
Court for the District of Columbia (No. 77¢ev02019)
[Filed: July 19, 1996]
Before: SILBERMAN, STEPHEN F. WILLIAMS and
ROGERS, Circuit Judges.
Opinion for the Court filed by Circuit Judge
WILLIAMS.
WILLIAMS, Circuit Judge:
This case appears before us on appeal for the third
time. A sex discrimination class action against the
United States Information Agency (“USIA”), it has
been working its way up and down the system for
nearly 20 years. The end may be at hand—or at least
further progress into the remedial phase may be. We
(la)
2a
find most of defendant’s arguments—which concern
both certification and liability—to be either waived or
barred by law of the case. We affirm the judgment
except as it concerns the individual claim of plaintiff
Carolee Brady (Hartman) and the decision setting
aside 39 foreign service officer slots to be filled by
class members.
* * *
The facts and procedural posture of this case are
described at length in our second pass at it, Hartman
v. Duffey, 19 F.3d 1459, 1461-63 (D.C.Cir.1994), so we
will give only a brief summary here. In November
1977 Carolee Brady Hartman’ filed a sex discrimina-
tion class action against the USIA, and in April 1978
the district court conditionally certified a class of
women under F.R. Civ. Pro. 23(b)(2). After the
parties agreed to bifurcate the trial into a liability
and a remedy stage, the district court held a bench
trial on class liability and found that plaintiffs had
failed to establish a prima facie case of sex discrimi-
nation. De Medina v. Reinhardt, 21 Fair Empl.
Prac. Cas. (BNA) 75, 1979 WL 39 (D.D.C.1979). On
the first appeal, we reversed the dismissal of the
hiring discrimination claim because we found error
in the court’s treatment of the statistical evidence.
De Medina v. Reinhardt, 686 F.2d 997, 1002
(D.C.Cir.1982). On remand, the district court found
that the USIA had discriminated against women in
hiring for six occupational categories. Hartman v.
Wick, 600 F.Supp. 361 (D.D.C.1984). In 1988 the
! Ms. Hartman later changed her name to Brady, but in
order to reduce confusion we will follow the parties in
continuing to use the name Hartman.
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district court laid out the framework for relief,
Hartman v. Wick, 678 F.Supp. 312 (D.D.C.1988),
ruling that unless the parties agreed otherwise, class
members who applied for civil service positions were
to be given “Teamsters” hearings to determine relief
on an individual basis. See International Bhd. of
Teamsters v. United States, 431 U.S. 324, 372, 97 S.Ct.
1843, 1873, 52 L.Ed.2d 396 (1977).” For applicants for
foreign service jobs, the district court in 1992 set
aside 39 slots to be filled by class members over the
next three years. Hartman v. Gelb, No. 77-2019
(D.D.C. July 9, 1992) (“July 1992 order”). The USIA
appealed.
On the second appeal, we addressed only the
question of class certification, saying that the record
did not adequately demonstrate that a class existed.
19 F.3d at 1472. We remanded, holding that “plaintiffs
must make a significant showing to permit the court
to infer that members of the class suffered from a
common policy of discrimination that pervaded all of
the employer’s challenged employment decisions.” 19
F.3d at 1472 (analyzing General Tel. Co. v. Falcon,
457 U.S. 147, 159, 102 S.Ct. 2364, 2371, 72 L.Ed.2d 740
(1982)).
After our remand, twenty class members re-
presenting the six job categories petitioned for
2 At a Teamsters hearing each plaintiff must show by a
preponderance of the evidence that she applied for a job during
the relevant time period and was rejected. The burden then
shifts to the defendant to show that there was a legitimate
reason for not hiring the applicant. If defendant meets that
burden, the plaintiff can offer evidence indicating that the
proffered reason is simply a pretext for discrimination. See
Hartman v. Wick, 678 F.Supp. at 335; Hartman v. Duffey, 19
F.3d at 1462 n. 2.
da
intervention as named plaintiffs, and the district
court approved intervention as of right under F.R.
Civ. Pro. 24. Hartman v. Duffy, 158 F.R.D. 525,
535-36 (D.D.C.1994). He further found that the class
was properly certified both in 1978 and now, holding
that plaintiffs had identified four discriminatory prac-
tices that demonstrated a common policy of discrimi-
nation sufficient to support the initial class certifica-
tion. Jd. at 538-3y. (We return to these practices
later.)
The USIA now appeals again, asserting a variety of
errors. Primarily because of law of the case and
waiver, we reject all of defendant’s arguments except
those specifically concerning Hartman herself and
the 39 foreign service slots.
L Vicarious Exhaustion of Administrative Reme-
dies
The USIA argued to the district court on the latest
go-around that class members should not be permitted
to intervene as additional named plaintiffs because
they had failed to exhaust their administrative reme-
dies. 158 F.R.D. at 535. The district court applied
this court’s doctrine of vicarious exhaustion—that
exhaustion of administrative remedies by one member
of the class satisfies the requirement for all others
with sufficiently similar grievances, see Foster v.
Gueory, 655 F.2d 1319, 1322-23 (D.C.Cir.1981)—and
therefore allowed the intervention. On this appeal,
the USIA disputes the district court’s application of
the vicarious exhaustion doctrine, claiming among
other things that the few administrative complaints
actually filed were not precise enough to fulfill the
purposes of the doctrine, such as putting the agency
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on notice and allowing for administrative resolution
of the claims.
We do not reach the merits of defendant’s argu-
ments on this issue because of the defendant's failure
to pursue it in its prior appeal. “(Where an argument
could have been raised on an initial appeal, it is
inappropriate to consider that argument on a second
appeal following remand.” Northwestern Indiana
Tel. Co. v. FCC, 872 F.2d 465, 470 (D.C.Cir.1989). The
rule serves judicial economy by forcing parties to
raise issues whose resolution might spare the court
and parties later rounds of remands and appeals.
Crocker v. Piedmont Aviation, Inc., 49 F.3d 7309, 740
(D.C.Cir.1995).
The USIA had ample opportunity to raise the
exhaustion issue on its previous appeal when it chal-
lenged class certification. Its theory here depends
simply on the absence of individual exhaustion and on
the vagueness of the administrative complaints of
those who did exhaust. As the vast majority of the
members of the class have not exhausted their admin-
istrative remedies (and in fact the intervenors are and
have always been members of the class), the filing of
petitions for intervention as named plaintiffs did
nothing to enhance defendant's ability to raise the
issue of exhaustion by plaintiffs who in fact failed to
exhaust their remedies personally. By arguing the
exhaustion point at the appropriate (much earlier)
juncture, the USIA could perhaps have undone certi-
fication at one stroke. Instead, the agency waited to
raise this issue until this late date, almost two
decades into litigation and after our second opinion in
this case focusing almost exclusively on class certi-
fication. The omission is all the more striking
hecause the issue had come up in the course of the
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litigation before with respect to one named plaintiff.
See De Medina, 686 F.2d at 1012-13 (finding that the
vicarious exhaustion doctrine of Foster applied to
named plaintiff Kobylinski, whose claims were “virtu-
ally identical” to those of named plaintiff Martinez,
who had exhausted). We therefore find no error in the
district court’s order permitting the intervention of
additional named plaintiffs.
We note that plaintiffs did not raise this waiver
problem. We have in some instances found such
silence to be a waiver of a waiver, see, e.g., Belton v.
WMATA, 20 F.3d 1197, 1202 (D.C.Cir.1994); Fox v.
District of Columbia, 883 F.8d 1491, 1496
(D.C.Cir.1996), but we do not do so here.’ We think it
would be in only the most extraordinary case that a
second-time appellant could escape the consequences
of its earlier omission at the end of nearly twenty i
years of litigation.
Il. Hartman’s Individual Claims
We do find one aspect of defendant’s arguments
about lack of vicarious exhaustion to be not waived—
and persuasive: that Hartman herself is out of the
case because the district court had earlier found that
she was not qualified for the job she sought. The only
personnel action that Hartman claimed had injured :
her was rejection of her application for a job on ;
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* The Supreme Court has held that the requirement that a
Title VII plaintiff file a timely complaint with the EEOU
before gaining access to the courts is not jurisdictional,
meaning that it can be waived and—most importantly for
purposes of rejecting waiver of waiver—that we need not raise
the exhaustion issue on our own initiative. Zipes v. Trans
World Airlines, 455 U.S. 385, 392-98, 102 S.Ct. 1127, 1131-35, 71
L.Ed.2d 234 (1982).
we |
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Horizons Magazine, a USIA publication. In its 1979
opinion rejecting class certification [sic], the district
court noted that “[bloth Ms. Dorothy Crook, then
Senior Editor of Economic Impact, another Agency
publication, and Mr. Robert Korengold, then Editor of
Horizons Magazine, testified that Ms. Hartman
could not have been seriously considered for the
position as she did not possess sufficient professional
journalism experience.” 21 Fair Empl. Prac. Cas. at
80. The court credited this testimony, writing: “The
Court conclusively accepts the testimony of Ms.
Crook and Mr. Korengold on this matter.” /d. (em-
phasis added).
That conclusion lay fallow in the record until the
most recent remand, when the trial court’s apparent
change of mind surfaced accidentally. The govern-
ment pointed out the prior conclusive finding against
Ms. Hartman in connection with the analysis of
typicality (for certification purposes), 158 F.R.D. at
545, only to be told by the district court: “(T |his
Court neither heard nor made a final determination
on the merits of Ms. Hartman’s individual claim. Ms.
Hartman’s claim, like those of every other class
member who applied for a civil service position, is
subject to an individual Teamsters hearing before the
Special Master.” Jd. at 546.
We do not understand in what sense the district
court can mean that its prior “conclusivel )” finding
was non-final. Although not the subject of a separate
judgment under Rule 54 of the Federal Rules of Civil
Procedure, it was a “conclusive” ruling that was
embraced by the final judgment that was the subject
of the first appeal, decided in 1982. (And our decision
on the first appeal did not overturn that specific
finding.) In an apparent effort to suggest an excep-
8a
tion to the application of law of the case to the issue,
the district court observed that plaintiffs cited the
affidavit of a USIA Personnel Management Specialist
saying that he thought Hartman was qualified for a
GS-11 or -12 position in “editorial-type” work. Jd. at
545-46 n. 16. (The Horizons Magazine job was the
equivalent of GS-11 or -12.) But this was among the
evidence the trial court considered in arriving at its
earlier decision, and so does not fit under the excep-
tion for new evidence. In any event the personnel spe-
cialist was not addressing specific qualifications for
the Horizons Magazine job. Although plaintiffs sug-
gest no other reason why the finding against Hart-
man is not in fact “conclusive” under law of the ase,
in truth the defendant raised the issue only rather
obliquely; we remand the case in light of the possibil-
ity that there is some overlooked exception to law of
the case that might permit revival of her individual
claim.
Ill. The Propriety of Class Certification
Our most recent (1994) opinion dealt at length with
the question of class certification in this case, analyz-
ing in considerable detail the Supreme Court’s expo-
sition in General Tel. Co. v. Falcon, 457 U.S. 147, 102
S.Ct. 2364, 72 L.Ed.2d 740 (1982), of the commonality
requirement in discrimination class actions. See 19
F.3d at 1469-70. We observed that the “principal prob-
lem” with certification in this case was that the class
“encompasses both civil service and foreign service
applicants to the USIA, despite the fact that the two
categories are hired under different personnel sys-
tems.” Jd. at 1471. Although the latest district court
opinion understandably spent considerable time show-
ing that the claimed discriminatory practices cut
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across both civil and foreign service categories, see,
e.g., 158 F.R.D. at 536-37, 541, 546, the USIA has not,
so far as class certification is eoncerned, addressed
the civil service/foreign service difficulty at all on
this appeal. So that issue is out of the case.
There remains the general question whether plain-
tiffs showed sufficient commonality and typicality
among the members of the plaintiff class. Under our
prior instructions, the district court—as we noted
above—identified four “practices” evidencing a com-
mon policy of discrimination that largely cut across
job categories. 158 F.R.D. at 539. The defendant ar-
gues that these supposed “practices” amount simply
to anecdotal evidence of subjective discrimination.
We need not resolve that claim, however, for even if
we resolved it in the defendant’s favor we would not
find an abuse of discretion in the class certification.
Wagner v. Taylor, 836 F.2d 566, 578 (D.C.Cir.1987)
(reviewing for abuse of discretion). In our most
recent pass at this case, we hesitated to suggest that
the certification finding might be based on statistical
evidence alone. Hartman, 19 F.3d at 1474. We ex-
pressed concern that some of the statistical evidence
might have been “premised on the (improper) class
certification,” id., a concern that appears to have been
significantly driven by the plaintiffs’ blurring of lines
between the civil service and the foreign service. But
with that issue completely out of the case, and with
the defendant making no argument as to why the
statistical evidence would not have been admissible in
trials of individual cases brought on behalf of any
particular class member, the case no longer appears
to present any reason for that concern. Accordingly,
we find no properly preserved error in the class
certification.
10a
IV. The 1984 Finding of Liability
After the first remand from this court in 1982,
neither party sought to introduce new evidence but
agreed to submit on the existing record. 600 F.Supp.
at 362-63. On the last appeal, referring to the defen-
dant’s later effort to introduce new statistics differ-
entiating between the civil and foreign services, we
observed that the district court’s decision whether to
consider new evidence after the close of the liability
portion of a bifurcated trial was reviewed only for
abuse of discretion. 19 F.3d at 1473 (citing Segar v.
Smith, 738 F.2d 1249, 1285 (D.C.Cir.1984)). The USIA
has again sought to offer new statistical analyses of
data in the record, which the district court did not
consider. We find no abuse of discretion.
First, the USIA now argues for two-tailed statisti-
cal analysis, as opposed to the one-tailed analysis
actually performed for trial by plaintiffs’ expert. The
differences between two-tailed and one-tailed analysis
are described in Palmer v. Shultz, 815 F.2d 84, 94
(D.C.Cir.1987), which ultimately favors two-tailed
analysis for Title VII purposes, id. at 95. The key
distinction is that one-tailed analysis tests whether a
group is disfavored in hiring decisions while
two-tailed analysis tests whether the group is prefer-
red or disfavored. In two-tailed analysis, a larger dif-
ference (measured in standard deviations) between
the actual incidence of (say) hiring of a class and the
“expected value” is necessary before a social scientist
would reject the inference that the difference was
random. /d. at 92-96. On appeal, defendant offers new
calculations of standard deviations that it claims
reveal no statistically significant disparities in two
job categories, using two-tailed analysis for the first
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time. But because defendant offered no calculations of
standard deviations at all at trial, and indeed never
objected to plaintiffs’ expert’s use of one-tailed analy-
sis, we reject the claim.
For similar reasons, we reject defendant’s claim
that the district court should have considered yearly
hiring statistics rather than the static “snapshot”
statistics plaintiffs’ expert provided (which might
incorporate pre-Civil Rights Act discrimination). At
trial, the defendant’s expert presented hiring statis-
tics in raw form only, with no effort to compute stan-
dard deviations or otherwise offer statistical analysis.
In its reply brief the USIA essentially argues that
the district court should have calculated the standard
deviations itself, an argument plainly inconsistent
with the conventional requirement that each party
present the evidence and arguments on its side of a
case.
On the question of whether civil and foreign service
hires should be separated for statistical purposes, the
USIA, in contrast to its silence on the point as re-
gards class certification, argues on the liability issue
in favor of such separation. But this is not only not
the position it presented at trial, but is the opposite of
it. At trial defendant’s expert insisted that the For-
eign Information Specialist Category (which was
mostly made up of foreign service officers) could not
be separated from the other job categories (mostly
made up of civil service members) that he aggregated
and compared with the census category “Editors and
Reporters.”
Finally, the USIA challenges the district court’s
1984 “cross-mapping” for the job category of foreign
language broadcaster. “Cross-mapping” refers to the
process by which the plaintiffs compared the male-
12a
female composition of the workforce in various USIA
categories with the male-female composition nation-
wide in various private-sector job categories defined
by the U.S. Census Bureau. The district court found
plaintiffs’ expert’s choice of the Editors and Report-
ews census category to be “well-reasoned,” 600
F.Supp. at 374, rejecting the defendant’s preference
for the Radio Announcer category. The USIA now
argues that broadcasting and announcing experience
was an “essential minimum qualification” for the job.
But the position description in the record suggests
that the requirement was simply one of “a voice
suitable for international broadcasting,” and other
evidence indicates that men were hired for the posi-
tion despite lack of broadcasting experience. Under
the “clearly erroneous” standard, see De Medina, 686
F.2d at 1007, we find no reversible error in the
district court’s factual finding.
The USIA also claims that the district court
should not have reaffirmed its liability finding given
the new alleged discriminatory practices and evidence
from intervenors. But the agency confuses the issues
of certification and liability. The intervenors here,
who were already members of the class, sought to
become named plaintiffs and introduce evidence solely
for purposes of certification; the evidence does not go
to liability. The defendant having failed to show any
properly preserved error in the analysis by which the
district court reached its prior finding of liability, the
new evidence is unnecessary to plaintiffs’ success on
that issue. Moreover, as the district court pointed
out, the intervention would not adversely affect the
anticipated remedial proceedings, as the intervenors
who were civil service applicants would simply par-
ticipate in Teamsters hea’. just as they would
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have as class members, and those who were foreign
service applicants would simply join others already
seeking the 39 slots the court had set aside. 158
F.R.D. at 532 n. 3. We therefore affirm the district
court’s refusal to reopen its finding of liability.
V. The 39 Foreign Service Slots
Finally, the USIA objects that in the remedial
phase of the case the district court set aside too many
foreign service slots to be filled by class members
because it included hiring shortfalls for 1985. (AI-
though all 39 slots were to be filled as of December
1995, we do not believe the claim is moot, because, as
the parties seem to agree, there is a reasonably high
probability of continuing disputes over seniority, the
effects of reductions in force, and similar issues.)
The problem is that the district court had earlier
ruled that “the Defendant’s liability ceased as a mat-
ter of law” on November 16, 1984, see July 1992 order
at 6 n.4, which seems to preclude reliance on inferred
hiring shortfalls for 1985 as a basis for creation of
remedial slots.
The district court arrived at the figure of 39 by
relying on the model of one Dr. Siskin, called by plain-
tiffs, that was presented at a 1987 hearing on reme-
dies, Id. at 10-12. Siskin calculated shortfalls in fe-
male hiring of foreign service officers for the years
1979-85, see Joint Appendix 497, which the district
court characterized as data for 1978-84, July 1992
order at 12. This apparent error may have beefed up
the slot calculation by about ten positions, as the
USIA claims, but of course there is also the problem
that Siskin’s data did not cover 1978 (the first year for
which remedy was to be had, id. at 2). We accordingly
l4a
remand the case to the district court to sort out this
conundrum.
* * *
We therefore affirm the district court in most re-
spects, remanding only for consideration of why
named plaintiff Hartman’s individual claims should
not be dismissed and for re-examination of the number
of foreign service slots set aside.
So ordered.
ina tus niateaaaccia stead
15a
APPENDIX B
UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
No. 77-2019
CAROLEE BRADY HARTMAN, ET AL., PLAINTIFFS
Vv.
JOHN REINHARDT, DEFENDANT
[Filed: April 19, 1978]
ORDER
This case is before the Court on plaintiffs motion
for class action certification. Although plaintiff's
complaint does not state the policies or patterns of
discrimination affecting the class with the specificity
the Court would prefer, the Court will conditionally
certify the class at this time. However, the Court
would like to caution the plaintiff that this certifica-
tion is “conditional” and may be modified by the Court
at any time should the record later indicate such to be
appropriate. Accordingly, it is, by the Court, this 19th
day of April, 1978,
ORDERED, that plaintiffs motion for class action
certification pursuant to the provisions of Fed. R.
Civ. P. 23(a) and 23(b)(2) be, and the same hereby is,
conditionally granted; and it is
l6a
FURTHER ORDERED, that the class be, and the
same hereby is, conditionally certified to include all
women who have applied for employment with or are
currently employed by the United States Information
Agency and who have been or continue to be adversely
affected by the discriminatory employment practices
of the defendant.
/s/ CHARLES R. RICHEY
CHARLES R. RICHEY
United States District Judge
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17a
APPENDIX C
UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
Civil Action No. 77-0360
LuBA S. KOWALYSZYN DE MEDINA, PLAINTIFF
Vv.
JOHN E, REINHARDT, DEFENDANT
Civil Action No. 78-0762
TOURA KEM, PLAINTIFF
Vv.
JOHN E. REINHARDT, DEFENDANT
Civil Action No. 77-2019
CAROLEE BRADY HARTMAN, ET AL., PLAINTIFFS
Vv.
JOHN E. REINHARDT, DEFENDANT
[Filed: Oct. 24, 1979]
RICHEY, D.J.
I. Introduction
This class action is brought by five (5) named
plaintiffs on behalf of all women who have applied for
employment with, or are currently employed by, the
United States International Communication Agency
ee
18a
(the “Agency”), formerly known as the United States |
Information Agency. The Agency’s largest element |
is the Voice of America (VOA).
The defendant, John E. Reinhardt, is the Director
and Chief Executive Officer of the Agency. He is sued
in his official capacity. The Agency is an executive |
agency of the United States within the meaning of 42 |
U.S.C. § 2000e-16(a). |
This Title VII class action originates out of the at- |
tempts of Carolee Brady Hartman, a woman, to gain
employment with the Agency as a writer/editor.
After exhausting her administrative remedies, Ms.
Hartman filed this civil action, on behalf of herself |
and all other persons similarly situated, on November
25, 1977, in compliance with the jurisdictional prereq-
uisites for a Title VII action set forth in 42 U.S.C.
§ 2000e-16(c). Ms. Hartman’s complaint alleges em-
ployment discrimination on the basis of sex, in promo-
tion and hiring practices of the defendant Agency, in
violation of Title VII of the Civil Rights Act of 1964,
as amended, 42 U.S.C. § 2000e et seq. The class was
conditionally certified pursuant to Fed. R. Civ. P.
23(b)(2) on April 19, 1978.
{Consolidations]
Since that time, four (4) other women have joined
Ms. Hartman as named plaintiffs in this action. On
September 11, 1978, the Court ordered that Ms. Luba
Medina, Ms. Rose Kobylinski and Ms. Josefina Mar-
tinez be permitted to intervene as named plaintiffs in
this action. The complaint in intervention also al-
leges employment discrimination on the basis of sex,
in promotion and hiring practices of the defendant i
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19a
Agency, in violation of Title VII of the Civil Rights
Act of 1964, as amended 42 U.S.C. § 2000e et seq.
Later, on November 9, 1978, the Court ordered con-
solidation of a separate Title VII action brought by
Ms. Medina against the same defendant, C.A. No. 77-
0360, which was then before the Court. This separate,
individual Title VII action was filed by Ms. Medina on
March 3, 1977. Ms. Medina’s complaint alleges em-
ployment discrimination on the basis of sex and na-
tional origin, in practices of the defendant Agency, in
violation of Title VII of the Civil Rights Act of 1964,
as amended, 42 U.S.C. § 2000e-2(a) and 3(b), and 42
U.S.C. §§ 1981 and 1983.
In addition, Kem v. Reinhardt, C.A. No. 78-0762, a
Title VII action brought against the same defendant
by a rejected job applicant named Toura Kem, was
consolidated with this action on November 22, 1978,
This separate, individual Title VII action was filed by
Ms. Kem on April 29, 1978. Ms. Kem’s complaint al-
leges employment discrimination on the basis of Sex,
in “certain acts, practices, and courses of conduct” of
the defendant Agency, in violation of Title VII of the
Civil Rights Act of 1964, as amended, 42 U.S.C. §
2000e et seq.
The parties agreed that the trial of this case was to
be bifurcated into a “liability” stage and a “relief”
stage. Issues of entitlement to specific relief by
individual members of the class would be postponed
until a later stage in the proceedings in the event that
plaintiffs were successful in demonstating a pattern
or practice of discrimination by a preponderance of
the evidence. See International Brotherhood of
Teamsters v. United States [14 EPD P 7579], 431 U.S.
324, 360 (1977), where the Court stated: “at the initial
20a
‘liability’ stage of a pattérn or practice suit the
[plaintiff] is not required to offer evidence that each
person for whom it will ultimately seek relief was a
victim of the employer’s discriminatory policy.”
Thus, the issue before the Court may be stated as
follows:
Whether the defendant’s hiring, promotion and
salary practices constitute patterns or practices
of discrimination based on sex in violation of Title
VII of the Civil Rights Act of 1964, as amended, 42
U.S.C. § 2000e et seq.’
The Court resolves this issue in favor of the defen-
dant. The Court recognizes that statistics can make
out a prima facie case of employment discrimination. |
However, the Court finds that the conclusions of the
respective statistical studies conducted by the par-
ties’ experts are misleading due to a failure to define
adequately the relevant labor market from which the
Agency draws for qualified personnel. In addition, the
plaintiffs’ evidence concerning individual instances -of
discrimination is not persuasive. Accordingly, the
Court finds, as hereinafter more particularly set
forth, that the plaintiffs’ have failed to carry their re-
quired burden of proof by a preponderance of the evi-
dence. Additionally, it appears that the Agency has
done, and continues to do, all it can to eliminate any
pattern or practice of disparate treatment or dis-
crimination on the basis of sex. In accordance with
A UR ne ee
1 The defendant concedes that the merits of the individual
Title VII cases that have been consolidated herein may still
have to be addressed at a later proceeding before the Court.
See, Defendant’s Supplemental Post-Trial Memorandum and
Conclusions of Law, at 2, n.1 (filed July 18, 1979).
a RT Tm rer meee ©
Zla
the foregoing, the following constitutes the Court’s
findings of fact and conclusions of law.
Il. Finding of Fact
A. The Statistical Evidence of the Parties Fails
Adequately to Define the Relevant Labor Mar-
ket From Which the Agency Draws Qualified
Personnel.
1. Plaintiffs have sought to support their Title VII
claims through the testimony of Dr. Mare Rosen-
blum. Dr. Rosenblum is a consulting labor economist
by profession and training. He holds a Ph.D. in indus-
trial relations and has worked on more than twenty-
five (25) employment discrimination cases as an ex-
pert witness.
2. The statistical analysis conducted by Dr.
Rosenblum here involved a three-step process.
First, Dr. Rosenblum correlated (“crossmapped”)
the U.S. Civil Service Commission titles, (i.e., the job
categories used by the Agency), with the various job
categories used by the U.S. Bureau of the Census.”
Second, Dr. Rosenblum focused on fourteen (14) ma-
jor occupational categories within the Agency, as
identified by the Agency Affirmative Action Plan
for Fiscal Year 1978, pages B-15, 16, to determine
whether women have been underutilized by the
Agency in any of those major categories. The catego-
ries examined include seventy-five percent (75%) of
the jobs at the Agency. He compared the proportion
of women within each of these for categories, based on
* Alphabetical Index of Industries and Occupations, U.S. De-
partment of Commerce, Bureau of the Census; issued June,
1971.
22a
data provided by the defendant, with the proportion of
women available in the relevant labor market, based
on data provided by the Bureau of Labor Statistics,
United States Department of Labor (7.e., the United
States Department of Labor, Bureau of Labor Statis-
tics’ annual averages for the year 1978°). This wit-
ness claimed that there was a statistically significant
underutilization of women in six (6) major job catego-
ries.
Third, Dr. Rosenblum calculated the number of
expected female employees in each of the six (6) job
categories, assuming the Agency’s hiring practices
were free of sex discrimination. To derive the num-
ber of expected female employees, the proportion of
women available in the relevant labor market in each
of these job categories was applied to the total number
of Agency employees within the same job categories.
The difference in the number of women employed in
each job category within the Agency and the number
“expected” was then measured by the statistical tech-
nique of standard deviation analysis. Next, the
standard deviation was translated into a probability
that such a difference could have occurred by chance.
Under customary scientific practice, 1.65 standard
deviations, means that there is 0.05 or five (5) chances
in one hundred (100) that such a difference occurred
by chance, but this does not mean, based upon all the
evidence here, that the difference was caused by any
discrimination on account of sex.
3 Employment and Earnings, U.S. Department of Labor,
Bureau of Labor Statistics, 1978 annual averages, Vol. 26, No. 1,
January, 1979.
23a
3. Dr. Rosenblum also claimed that there was sta-
tistically an underutilization of women in six (6) ma-
jor job categories. Further, he asserted that the
probability of such underutilization occurring by
chance was less than 0.05 in all six (6) categories.
These six (6) categories are: 1) Electronic Techni-
cian, 2) Foreign Language Broadcaster, 3) Production
Specialist, 4) Writer/Editor, 5) Foreign Information
Specialist, and 6) Radio Broadcast Specialist. How-
ever, for the reasons hereinafter discussed, the Court
finds that Dr. Rosenblum’s conclusions are entitled
to, based upon a consideration of the record as a whole
and his credibility as a witness, little probative value
or weight.
(Defendant’s Expert]
4. Dr. Seymour Wolfbein testified as an expert la-
bor economist on behalf of the defendant Agency. Dr.
Wolfbein is a nationally recognized manpower expert,
with wide experience in the fields of manpower utili-
zation, labor employment patterns and labor statis-
tics.
5. Dr. Wolfbein utilized an approach and methodol-
ogy quite different from that of Dr. Rosenblum’s.
The type of analysis performed by Dr. Wolfbein was
more relevant to the issues within the case but still -
deficient in determining whether there was a pattern
or practice of discrimination against women at the
defendant Agency because of the inherent difficulties
involved here.
Dr. Wolfbein first grouped (“crossmapped”) the
occupational activities at the Agency (professional,
managerial and clerical), for which data was available
from October, 1969 through December, 1978, into
24a
standard occupational classifications, using the most
similar job categories prepared by the U.S. Bureau of
the Census.’ However, the job categories used as
compared with the jobs in issue at the Agency simply
do not match. Since the class herein is an agencywide
class consisting of women in all employment catego-
ries, Dr. Wolfbein thought it essential that he analyze
all such categories at the Agency, which Dr. Rosen-
blum did not do. The date of October, 1969, was
selected as a starting point since that was the date
nearest to the 1970 Decennial Census for which data
on all job categories was available from the Agency
(with the exception of the blue collar field, for which
data was available as of June, 1975).
Dr. Wolfbein first compared the Agency’s utiliza-
tion of women in each of these Census categories with
the level of their availability in the external labor
market, according to the 1970 Census. Comparisons
were made with the United States as a whole in the
professional and managerial fields and with the Dis-
trict of Columbia Standard Metropolitan Statistical
Area for the remainder of the occupations.
6. Defendant accurately summarized Dr. Wolf-
bein’s testimony as follows:
In terms of the statistical exercise being per-
formed, I would say unequivocally, . . . that this
is a picture of an agency which does not under-
utilize women across the board . . . To put it
more positively, it shows a pattern and a practice,
in terms of hiring, assignment, promotions, in
which the utilization of women meets accepted
labor market practice in America statistically.
4 Supra, n.2.
25a
See, Defendant’s Proposed Supplemental Findings of
Fact, at 26, (filed June 21, 1979). See also Tr. 53-54,
June 1, 1979.
Specifically, Dr. Wolfbein proffered to this Court
that the Agency’s utilization of women is slightly
above its external labor market in professional per-
sonnel (19.1% vs. 18.5%) and clerical personnel (82.3
vs. 81.3%), and well above its labor market for manage-
rial personnel (25.2% vs. 15.0%). However, for the
reasons hereinafter discussed, the Court finds that
Dr. Wolfbein’s conclusions, although entitled to much
more weight than plaintiffs’ expert witness, are not
dispositive of the case either. (See Findings of Fact
#13 and #14).
7. The relevant external labor market for profes-
sional employees at the Agency is the nationwide
labor market, but the fact remains that there is no
national or even local statistical data which matches
those job categories at the Agency and the specific
requirements thereof.
[Class Modification]
8. The Court notes that Dr. Rosenblum focused on
women in several occupations at the professional lev-
els of the Agency. Comparison of the Agency’s utili-
zation of women in the clerical positions with their
availability in the relevant labor market does not pro-
vide a meaningful analysis in light of the traditional
predominance of women in these occupations and the
scope of the plaintiff’s complaint. The plaintiffs do
not quarrel with the defendant’s position that women
in the lower clerical levels are over-represented.
Based upon this finding of fact and the record consid-
ered as a whole, the Court finds its conditional cer-
26a
tification of all women at the Agency as a class was
erroneous because the evidence adduced dealt basi-
cally, if not only, with the women in the highly tech-
nical and specialized fields at the Agency. Accord-
ingly, the class will be modified so as to include all
women who have applied for employment with, or are
currently employed by, the Agency, other than those
in clerical positions.
9. At first glance, using the plaintiffs’ classifica-
tion titles, it would appear there are disparities be-
tween the women employed at the Agency and the
external labor pool of 1) Electronic Techicians, 2)
Radio Broadcast Techicians, 3) Writers/Editors, and
4) Foreign Information Specialists.
10. However, the apparent agreement as to the re-
sults between the testimony of the experts concern-
ing the employment of women in these highly special-
ized fields is, nonetheless, misleading. Both statisti-
cal studies require the parties’ experts to engage in
“cross-mapping”, that is, the comparison of figures
for job titles defined by different organizations, in-
cluding the U.S. Civil Service Commission and the
U.S. Bureau of the Census, which are different in
label as well as job content and requirements. The job
categories used by the parties’ experts do not corre-
spond with the jobs in the defendant Agency. Neither
do plaintiffs’ nor defendant’s experts adequately ex-
plain that the tasks actually performed by the employ-
ees at the Agency, in the job categories analyzed,
correspond in any more than a very general and
speculative way to those utilized by the parties’
experts.°
5 Supra, n.2
27a
11, Cross-mapping of actual employee activities for
purposes of comparison with statistics concerning
available labor pools is appropriate and useful where
the inquiry is of general non-specialized skills. While
Statistics are helpful and useful in many cases, it
must be understood that it cannot be argued or found
in this case that precise labor pool availability figures
can be derived to determine the number of females
available for employment in such Specialized fields as,
for example, Cambodian language news analyst/
writer/broadcaster. The Court finds that both plain-
tiffs’ and defendant’s experts have failed to produce
sufficiently precise labor-pool-availability figures
either nationally or locally. Due to the inherent un-
reliability of broad and general cross-mapping with a
specialized variety of highly-skilled positions at the
Agency as compared to the available Census and BLS
job categories, the “cross-mapping” done here is of
little or no value in the case at bar.
B. The Evidence of Individual Instances of
Discrimination Is Not Persuasive.
The plaintiffs’ case would be more persuasive if the
evidence of individual instances of discrimination had
been made clear. While several of plaintiffs’ witnesses
may have been well-qualified for the positions for
which they applied (e.g., Ms. Kobylinski), the quali-
fications of most of them are very debatable at best.
For example, Ms. Debbie Showalter, a GS-4 secretary
with the Voice of America, repeatedly failed a qualify-
ing examination for employment as a writer with the
Agency, administered anonymously by the Personnel
Department.
Ms. Etel Berger, who contracted with the Voice of
America as a purchaser-order vendor for the Brazil-
28a
ian Branch of the Latin American Division in 1960
and worked continuously as a _ writer-translator-
broadcaster for the VOA until 1978, repeatedly re-
quested her supervisor to hire her as a full-time
employee. However, the evidence indicates that she
exhibited slowness in completing work assignments
and lacked currency in the Portuguese language at
the time of her employment.
Ms. Patricia DeLovely, who is employed by the
Agency as a GS-14 budget officer in the Central Bud-
get Office, applied for two newly created GS-15 posi-
tions within the Central Budget Office. Ms. De-
Lovely admitted that the person selected for the
position she sought was more qualified than she, even
discounting for training the selectee received.
Ms. Dorothy Slak, who had been employed by the
Agency and its predecessors as a Foreign Service
Information Officer for more than twenty (20) years,
claims that her grade level (FSIO-4) is well below
that of the vast majority of her male counterparts,
and her job assignments have allegedly been made on
the basis of sex. However, the evidence clearly indi-
cates she was incapable of administering her post in
Yugoslavia and generally exhibited poor performance
in the later stages of her career in the Foreign
service.
Ms. Luba Medina was employed by the Voice of
America from 1971 to 1974 when she resigned from
the Agency due to undiagnosed health problems.
Since her recovery, she has applied for employment
with the Agency in several positions but has been
rejected. Again, the evidence is clear and convincing
that Ms. Medina was unqualified for two positions and
tested poorly for a third.
29a
Finally, Ms. Carolee Hartman, the original plaintiff
in this case, complains that she should have been
considered and hired for a GS-11/12 writer/editor
position on Horizons Magazine, one of several publica-
tions of the Agency. Both Ms. Dorothy Crook, then
Editor of Economic Impact, another Agency publica-
tion, and Mr. Robert Korengold, then Editor of Hori-
zons Magazine, testified that Ms. Hartman could not
have been seriously considered for the position as she
did not possess sufficient professional journalism
experience. The Court conclusively accepts the testi-
mony of Ms. Crook and Mr. Korengold on this matter.
[Assertions Controverted]
2. Plaintiffs also proffered testimony concerning
the atmosphere of discrimination at the Agency.
However, the plaintiffs’ evidence is far from uncontro-
verted. Several witnesses, who are members of the
class occupying positions of responsibility at the
Agency, testified on behalf of the defendant that they
had neither perceived, nor experienced, employment
practices which were designed to discriminate
against, or preclude, the advancement of women in
any manner. Many in fact testified that the opposite
was true. In addition to this very credible testimony,
the fact that these women have attained the positions
they now occupy, and have done so by rapid and con-
sistent advancement, is dispositive of the absence of
any pattern or practice of discrimination based on sex
at the Agency at all relevant periods in this litigation.
For example, Ms. Jane Grymes described her
steady advancement in the secretarial career field
and, when she reached the top of that field, her move
into the administrative career field and subsequent
advancement to a GS-14 Management Analyst.
30a
Furthermore, Ms. Juliet Antunes testified convinc-
ingly regarding the Agency’s commitment to the
principles of Equal Employment Opportunity (EEO).
As head of the EEO office of the Agency during 1976
and 1977, she described the substantial progress the
Agency had made in areas of recruitment, upward
mobility, training, minority participation on promo-
tion panels and EEO screening of assignments to the
senior levels of the Foreign Service. Laudable exam-
ples of such accomplishments by the defendant are the
broadcasters intern program, the “new careers” pro-
gram (designed to stimulate advancement of secretar-
ial employees into mid-level administrative positions),
visits to colleges with a predominant minority enroll-
ment and several training programs specifically de-
signed to upgrade the position of women in the
Agency workforce.
Ms. Antunes also testified to and described the very
small number of EEO complaints coming to her atten-
tion while she was Director of the Agency’s EEO
office. The Court finds her a most credible witness
and her testimony persuasive.
III. Discussion
In order for a plaintiff to prevail in a Title VII class
action, a prima facie case of discrimination must first
be proved by a preponderance of the evidence. The
burden then shifts to the defendant to attempt to
refute the plaintiffs’ prima facie case if established.
McDonnell Douglas Corp. v. Green [5 EPD P 8607],
411 U.S. 792 (1972), Furnco Construction Corp. v.
Waters [17 EPD P 8401], 488 U.S. 567 (1978).
While it is well established in employment discrimi-
nation law that statistics can make out a prima facie
3la
case in individual Title VII cases or in class actions,
it is also well settled that they are not irrefutable and
their usefulness depends on all of the surrounding
facts and circumstances. As the Supreme Court
cautioned in International Brotherhood of Teamsters
v. United States [14 EPD P 7579], 431 U.S. 324, 340
(1977), statistics “come in infinite variety and, like
any other kind of evidence, they may be rebutted.”
[Failure of Proof]
Here, upon consideration of the record as a whole,
the credibility of witnesses and vague statistical data
and so-called job comparisons, it is clear that the
statistics and data proffered by the parties are of
little usefulness.
In this particular case, the statistics suffer from
the following deficiency, as noted by the Supreme
Court in Teamsters: imprecise definitions of the rele-
vant labor market when particular qualifications are
required for the job(s) in question. 431 U.S. at 339 n.
20.
The relevant labor market is that market from
which the employer draws its employees. United
States v. Ironworkers Local 86 [3 EPD P 8213], 443
F.2d 544 (9th Cir. 1971) cert. denied, 404 U.S. 984
(1971). In Hazelwood School District v. United States
(14 EPD P 7633], 433 U.S. 299 (1977), the Court
indicated that statistics comparing the employer’s
work force and the relevant labor market must be
based on the labor pool truly relevant to the em-
ployer’s potential work force. Clearly, the labor
market must include only those persons qualified to
perform the employer’s tasks, within the relevant
area and over the appropriate time period.
32a
process of\defining the rclevant labor market for the
Agency’s potential work ferce is inherently difficult
because of the special qualifications required of the
Agency’s employees. Indeed, the Court has found that
the parties’ experts have failed to define adequately
the relevant labor market from which the Agency
draws qualified personnel. As a result, the statistical
studies conducted by the experts have little probative
value. As the case of Hazelwood School District,
supra, indicates, statistical analysis based on the
available labor pool is inadequate without precise
definition of the relevant labor pool. This statistical
analysis and data in evidence here, based on the
experts’ “cross-mapping,” fails to produce the re-
quired precision due to the special qualifications and
highly specialized skills involved in this case, and,
therefore, does not support a finding of a pattern or
practice of discrimination by the Agency on the basis
of sex.
As hae in this Court’s findings of fact, the
While the plaintiffs’ case rests primarily on Dr.
Rosenblum’s study, the plaintiffs presented some in-
dividual testimony concerning employment discrimi-
nation at the Agency. However, as the findings of fact
make clear, this testimony was so unpersuasive as to
make it impossible for the Court to infer class-wide
discrimination. In addition, the defendant introduced
compelling, credible testimony from women currently
employed at the Agency indicating an absence of any
policy, pattern or practice of discrimination at the
Agency on the basis of sex.
In sum, the Court finds the plaintiffs have failed in
their burden of proof.
BEST AVAILABLE COPY
33a
TV. Conclusions of Law
1. This Court has jurisdiction under Title VII of
the Civil Rights Act of 1964, as amended, 42 U.S.C. §
2000e-16(c).
2. The class as conditionally certified herein be,
and the same hereby is, modified so as to include all
women who have applied for employment with, or are
currently employed by, the Agency, other than those
‘in clerical positions.
3. The plaintiff-class has not established a prima
facie case of discrimination on the basis of sex under
Title VII of the Civil Rights Act of 1964, as amended,
42 U.S.C. § 2000e et seq.
V. Conclusion
In accordance with the foregoing, the Court finds
that the plaintiffs have failed to establish by a pre-
ponderance of the evidence an agency-wide pattern or
practice of discrimination on the basis of sex. Accord-
ingly, the Court dismisses the class claim against the
defendant Agency. An order and judgment in accor-
dance with the foregoing will be issued of even date
herewith.
Order
Upon consideration of the entire record herein, and
in accordance with the Findings of Fact and Con-
clusions of Law of even date herewith, it is, by the
Court this 24th day of October, 1979,
Ordered, that the class as conditionally certified
herein be, and the same hereby is, modified so as to
include all women who have applied for employment
34a
with, or are currently employed by, the Agency, other
than those in clerical positions; and it is
Further ordered, that the class claims in these
consolidated proceedings against the defendant shall
be, and the same hereby are, dismissed in accordance
with the terms of the Findings of Fact and Con-
clusions of Law of even date herewith; and it is
Further ordered, that judgment on the class claim
shall be, and the same hereby is, entered for the
defendant, without costs to the plaintiffs.
35a
APPENDIX D
UNITED STATES COURT OF APPEALS
DISTRICT OF COLUMBIA CIRCUIT
Nos. 81-1909 to 81-1911
LuBA S. KOWALYSZYN DE MEDINA, APPELLANT
Vv.
JOHN E. REINHARDT, DIRECTOR, UNITED STATES
INTERNATIONAL COMMUNICATION AGENCY, ET AL.
CAROLEE BRADY HARTMAN, INDIVIDUALLY AND ON
BEHALF OF ALL OTHER PERSONS SIMILARLY SITUATED,
ET AL.,
ROSE KOBYLINSKI AND LUBA MEDINA, APPELLANTS
v.
JOHN REINHARDT, DIRECTOR, UNITED STATES
INTERNATIONAL COMMUNICATION AGENCY
TOURA KEM, LUBA MEDINA AND ROSE KoBYLINSKI,
APPELLANTS
Vv.
JOHN REINHARDT, DIRECTOR, UNITED STATES
INTERNATIONAL COMMUNICATION AGENCY
[Filed: Aug. 27, 1982]
Before WRIGHT and WALD, Circuit Judges and
ANTHONY J. CELEBREZZE,* Senior Circuit Judge of
the United States Court of Appeals for the Sixth
Circuit.
Sitting by designation pursuant to 28 U.S.C. § 294(d).
36a
Opinion for the Court filed by Circuit Judge WALD.
Opinion concurring in part and dissenting in part
filed by Senior Circuit Judge CELEBREZZE.
WALD, Circuit Judge:
These appeals contest the district court’s dismissal
of consolidated individual and class sex discrimina-
tion claims against the Director of the United
States International Communication Agency (“ICA”
or “Agency”), formerly the United States Informa-
tion Agency. Appellants contend that the district
court (1) evaluated under inappropriate legal stan-
dards the statistical and testimonial evidence of a
pattern and practice of discrimination in hiring, (2)
failed to make required fact findings on the class
promotion discrimination and retaliation claims, (3)
improperly dismissed an individual claim for failure to
exhaust administrative remedies, and (4) misapplied
the requirements for a prima facie showing of dis-
crimination to another individual claim. We find
merit in certain of appellants’ objections and there-
fore remand the class claims and the individual claim
of Rose Kobylinski for further consideration. We
affirm, however, the district court’s dismissal of Luba
Medina’s individual claim.
I. Background
In March 1977, Luba Medina, a former Agency em-
ployee, filed an individual claim for damages and
declaratory and injunctive relief under Title VII of
the Civil Rights Act of 1964, as amended by the Equal
Employment Opportunity Act of 1972, 42 U.S.C.
§§ 2000e-2000e-17. Her complaint alleged that, since
1974, the Agency had refused to rehire her in retalia-
37a
tion for her own prior charges of sex discrimination
and her husband’s work on behalf of Agency minority
employees. She also claimed that she had personally
suffered from the Agency’s discriminatory practices
against the foreign-born and women. In late 1977,
another job applicant, who had been denied employ-
ment by the Agency earlier in the year, filed a Title
VII class claim on behalf of female applicants and
employees against whom the Agency had discrimi-
nated in hiring and promotion. In April 1978, the
class was conditionally certified “to include all
women who have applied for employment with or are
currently employed by the United States Information
Agency and who have been or continue to be adversely
affected by the discriminatory employment practices
of the defendant.” Joint Appendix (“J.A.”) at 22.
Later that month, an Agency contract employee filed
a complaint charging that she had been denied a
permanent Agency position on account of sex. In
November the three cases were consolidated. In the
interim, the district court had permitted Medina and
two Agency employees, Josefina Martinez and Rose
Kobylinski, to intervene as named plaintiffs and had
allowed plaintiffs to supplement the class complaint to
include a claim that the Agency maintained “a
practice of reprisals against women who have filed
sex discrimination charges against the Agency.” J.A.
at 28. On April 19, 1979, plaintiffs filed a motion for
preliminary injunction to enjoin the defendant “from
taking any retaliatory action against individuals who
oppose the defendant’s discriminatory practices or
otherwise exercise their rights under Title VII.” On
May 16, the motion was denied orally without pre-
judice.
38a
The parties agreed to bifurcate trial of the class
claims into “liability” and “remedial” stages,’ and a
bench trial on liability was conducted from May 29,
1979 through June 5, 1979. On October 24, 1979, the
district court issued an opinion and order which re-
defined the class to exclude women in clerical posi-
tions and dismissed the class claims. Medina v.
Reinhardt, Nos. 77-0360, 77-2019 & 78-0762 (D.D.C.
Oct. 24, 1979) (Medina J), J.A. at 68.
Plaintiffs filed appeals on December 21, 1979, but on
September 19, 1980, this court dismissed the appeals
under Fed.R.Civ.P. 54(b)’ because the residual
| At the initial, “liability” stage of a pattern-or-practice
suit the [plaintiff] is not required to offer evidence that
each person for whom it will ultimately seek relief was a
victim of the employer’s’ discriminatory _ policy.
{Plaintiffs’] burden is to establish a prima facie case that
such a policy existed... .
If an employer fails to rebut the inference that arises
from the [plaintiffs’] prima facie case, a trial court may
then conclude that a violation has oceurred and determine
the appropriate remedy. . .. (A) court’s finding of
a pattern or practice justifies an award of prospective
relief. ...
When the [plaintiff] seeks individual relief for the vic-
tims of the discriminatory practice, a district court must
usually conduct additional proceedings after the liability
phase of the trial to determine the scope of individual re-
lief.
International Bhd. of Teamsters v. United States, 431 U.S.
324, 360-61, 97 S.Ct. 1843, 1867, 52 L.Ed.2d 396 (1977).
* Judgment upon Multiple Claims or Involving Multiple
Parties. When more than one claim for relief is presented
in an action, whether as a claim, counterclaim, cross-claim,
or third-party claim, or when multiple parties are
39a
individual claims remained to be heard. Three of the
named plaintiffs voluntarily dismissed their
individual claims, and trial of Medina’s and
Kobylinski’s claims was conducted on December 15
and 16, 1980. On June 15, 1981, the district court
rendered its decision dismissing Medina’s claim on
the merits and Kobylinski’s claim because she had
failed to exhaust her administrative remedies.
Medina v. Reinhardt, Nos. 77-0360, 77-2019 & 78-0762
(D.D.C. June 15, 1981) (Medina IJ), J.A. at 118. This
appeal followed.
Il. The Class Claims
Although the district court’s “Findings of Fact”
discussed rebuttal evidence as well as evidence
introduced by plaintiffs to establish their threshold
case, the court ruled in its “Conclusions of Law” that
the plaintiff class had failed to establish “a prima
facie case of discrimination om the basis of sex,”
Medina I at 13, J.A. at 80. The court’s conclusion
rested primarily on rejection of both parties’ statisti-
involved, the court may direct the entry of a final
judgment as to one or more but fewer than all of the claims
or parties only upon an express determination that there is
no just reason for delay and upon an express direction for
the entry of judgment. In the absence of such
determination and direction, any order or other form of
decision, however designated, which adjudicates fewer
than all the claims or the rights and liabilities of fewer than
all the parties shall not terminate the action as to any of
the claims or parties, and the order or other form of
decision is subject to revision at any time before the entry
of judgment adjudicating all the claims and the rights and
liabilities of all the parties.
28 U.S.C. rule 54(b).
40a
cal studies on hiring patterns as “misleading due to a
failure to define adequately the relevant labor market
from which the Agency draws for qualified per-
sonnel,” id. at 3, J.A. at 70. The court’s objection was
that the Census occupational categories used for
comparison “with the jobs in issue at the Agency
simply do not match.” Jd. at 6, J.A. at 73. We find,
however, that the district court’s opinion reflects a
basic misperception of the relevancy and role of sta-
tistical evidence in the plaintiffs’ prima facie show-
ing; hence, we remand for a redetermination of
whether plaintiffs can make out a prima facie case
of sex discrimination. Further, we must remand
because the court made no findings or comment
on plaintiffs’ evidence of Agency reprisals against
women asserting their rights under Title VII.
Had the court credited either appellants’ or appel-
lee’s definition of the relevant labor market, it would
have found “disparities between the women employed
at the Agency and the external labor pool of (1) Elec-
tronic Technicians, (2) Radio Broadcast Technicians,
(3) Writers/Editors, and (4) Foreign Information Spe-
cialists.” Jd. at 8, J.A. at 75. In 1977, when the class
action was initiated, these four categories accounted
for a major part of the Agency’s non-clerical posi-
tions. See, e.g., United States Information Agency
FY-1978 Affirmative Action Report (Plaintiff’s Ex-
hibit No. 22(b)). Consequently, on remand, the dis-
trict court should reconsider whether these dis-
parities alone or in combination with testimonial
evidence® are sufficient to raise an inference of
% Plaintiffs introduced two types of testimonial evidence:
(1) witness accounts of Agency rejection of their job applica-
tions upon which they sought to raise an inference of discrimi-
4la
discrimination in hiring and, if so, whether that
inference was adequately rebutted. Upon remand, the
court should also address the class retaliation claim.
A. Relevant Labor Market
The 1972 amendments to the Civil Rights Act
of 1964 came in response to the “persistence of dis-
crimination” and the consequent need for more effec-
natory motive, and (2) direct evidence of discriminatory
motive (e.g., testimony that an interviewer told a job applicant
that “he wanted to fill the position with a man,” Tr. at 35; J.A.
at 137). Appellants protest that the court improperly focused
on witness job qualifications in evaluating the second type of
testimony. We do not read the opinion that way. The court
held that “the evidence of individual instances of discrimina-
tion had [not] been made clear. While several of plaintiffs’
witnesses may have been well-qualified for the positions for
which they applied (e.g., Ms. Kobylinski), the qualifications of
most of them are very debatable at best.” Medina I at 9, J.A. at
76. The court thus did not infer a pattern or practice of
discrimination from the evidence that these women had been
denied employment or promotion. To the extent that a witness
attempts to establish that an Agency decision not to hire or
promote her was motivated by sex discrimination (the first
type of testimonial evidence), the qualifications of the witness
bear on whether the Agency personnel decision was based on
legitimate rather than discriminatory reasons. See I[nter-
national Bhd. of Teamsters v. United States, 431 U.S. 324, 358
n.44, 97 S.Ct. 1843, 1866 n.44, 52 L.Ed.2d 396 (1977); Presseisen
v. Swarthmore College, 442 F.Supp. 593, 601 (E.D.Pa.1977),
aff’d, 582 F.2d 1275 (3d Cir. 1978). The court dealt with the
second type of testimony by observing that the “testimony
concerning the atmosphere of discrimination at the Agency”
had been controverted by testimony of defendant’s witnesses
that “they had neither perceived, nor experienced, employ-
ment practices which were designed to discriminate against, or
preclude, the advancement of women in any manner.” Medina
I at 10-11, J.A. at 77-78.
42a
tive enforcement. H.R.Rep.No.238, 92d Cong., ist
Sess. 3 (1971), U.S.Code Cong. & Admin.News 1972, p.
2137. The legislative history particularly focused on
the seriousness of sex discrimination, id. at 4-5, and
explicitly recognized the need “(t)o correct ...
entrenched discrimination in the Federal service.”
Id. at 24, U.S. Code Cong. & Admin. News 1972,
p. 2159. It is noteworthy that Congress itself relied
on “statistical evidence” to prove the existence of sex
discrimination in higher level government jobs.
Statistical evidence shows that minorities and
women continue to be excluded from large num-
bers of government jobs, particularly at the higher
grade levels.
* * * *
This disproportionate distribution of minorities
and women throughout the Federal bureaucracy
and their exclusion from higher level policy-
making and supervisory positions indicates the
government’s failure to pursue its policy of equal
opportunity.
Id. at 23, U.S.Code Cong. & Admin. News 1972, p.
2158. See S.Rep.No.415, 92d Cong., Ist Sess., 421-23
(1971). Congress thus extended to federal employees
the right to bring individual and class actions under
Title VII.
In a Title VII suit, the claimant “carries the initial
burden of showing actions taken by the employer from
which one can infer, if such actions remain un-
explained, that it is more likely than not that ... the
employer is treating ‘some people less favorably than
others because of their race, color, religion, sex or
a
43a
> 99
national origin.’” Furnco Const. Corp. v. Waters, 438
U.S. 567, 576-77, 98 S.Ct. 2948, 2949, 57 L.Ed.2d 957
(1978) (quoting International Bhd. of Teamsters v.
United States, 431 U.S. 324, 335 n.15, 97 S.Ct. 1848,
1854 n.15, 52 L.Ed.2d 396 (1977)). When a plaintiff
submits sufficient evidence to permit such an infer-
ence, Title VII gives it the status of a “legally manda-
tory, rebuttable presumption.” Texas Dept. of Com-
munity Affairs v. Burdine, 450 U.S. 248, 254 n.7, 101
S.Ct. 1089, 1094 n.7, 67 L.Ed.2d 207 (1981). Because
unlawful discriminatory intent is typically elusive of
direct proof, Congress has deemed it appropriate to
then require an explanation of the defendant.
In a sex discrimination class action charging dis-
parate treatment, appropriate statistical comparisons
may be used to indicate whether similarly situated
men and women have been treated similarly, see, e.g.,
Valentino v. United States Postal Serv. (USPS), 674
F.2d 56, 69 (D.C.Cir.1982) (quoting Valentino uv.
United States Postal Serv., 511 F.Supp. 917, 940
(D.D.C.1980)), and, if not, whether the difference in
treatment shown’ supports an_ inference of
discriminatory intent. See, e.g., Teamsters, 431 U.S.
at 325 n.15, 97 S.Ct. at 1854 n.15. Where specialized
skills are legitimately required for employment,
“(t)he proper comparison is between the composition
of the (employer’s) work force and the qualified
population.” Davis v. Califano, 613 F.2d 957, 963
(D.C.Cir.1979) (As Amended Feb. 14, 1980). See
Valentino v. USPS, 674 F.2d at 68. (“When the job
qualifications involved are ones that relatively few
possess or can acquire, statistical presentations that
fail to focus on those qualifications will not have large
probative value.”) We have recently restated, how-
SE
44a
ever, that not every conceivable qualification for
every separate job must be taken into account in
making out a prima facie class claim of discrimina-
tion: “(T]he qualifications a Title VII plaintiff must
grapple with... are threshold or ‘minimum objective’
qualification.” Jd. at 71 n.24 (quoting Davis v.
Califano, 613 F.2d at 964)). Thus, plaintiffs must
identify the population likely to possess the minimum
objective qualifications required of Agency employees
(the relevant labor pool) and compare the proportion of
women in that population with the proportion of
women employed in the Agency. The comparisons in
turn must show disparities of sufficient magnitude
that they are statistically unlikely to have occurred
by chance. We are then entitled to assume that
“absent discriminatory employment practices, the
proportion of the protected group in each of the job
classifications and grade levels would approximate
the proportion of the protected group with the
minimum necessary qualifications ....” Id. at 964.
See, Teamsters, 431 U.S. at 339 n.20, 97 S.Ct. at 1856
n.20. Thus, statistically significant disparities be-
tween the composition of an employer’s work force
and the labor pool from which the employer draws
indicate that similarly situated people have been
treated differently and “alone may in a proper case
constitute prima facie proof of a pattern or practice of
discrimination.” Hazelwood School Dist. v. United
States, 483 U.S. 299, 307-08, 97 S.Ct. 2736, 2741, 53
L.Ed.2d 768 (1977).
Here, because the district court did not reach the
issue, we have no occasion to consider whether the
magnitude of the statistical disparities shown was
adequate to infer discriminatory motive. We are
45a
concerned in this appeal only with whether there is “a
basis for a reasonable assumption” that the compari-
son population was qualified for Agency positions.
Metrocare v. Washington Metropolitan Area Tran-
sit Auth. (WMATA), 679 F.2d 922, 930 (D.C.Cir.1982).
In this case, the experts testifying on both sides
proceeded through trial on the assumption that the
population sufficiently well-qualified to be employed
in Agency occupational categories was the population
employed in those same occupations outside the
Agency. We think this is a reasonable threshold
assumption which follows from the Supreme Court’s
reasoning in Hazelwood School Dist. v. United
States. In Hazelwood, a school district was charged
with racial discrimination in teacher hiring, and
United States Census data recording employment in
the relevant occupational categories were used to
calculate the disparities that formed the basis for
plaintiffs’ prima facie case. The Supreme Court
specifically approved the technique, noting that “{t]
he comparative statistics ... were properly limited to
public school teachers, and therefore this is not a case
. .. in which the racial-composition comparisons failed
to take into account special qualifications for the
position in question.” 433 U.S. at 308 n.13, 97 S.Ct. at
2742 n.13. Thus, Hazelwood established that the
proportion of a protected group actually employed
elsewhere in the relevant occupation(s) is a meaning-
_ ful measure of the proportion of the protected group
qualified for employment by the defendant. The dis-
trict court’s opinion here, however, raises the
question whether there is too much diversity within
the occupations involved in this case to permit
reliance on the Hazelwood assumption as a basis for
the plaintiffs’ prima facie showing. The district
46a
court concluded that the Census data used by the
experts on both sides here was not sufficiently reflec-
tive of the qualifications required for Agency posi-
tions. The court insisted on “statistical data which
matches those job categories at the Agency and the
specific requirements thereof,” Medina I at 7, J.A. at
74 (emphasis supplied), and concluded in its “Findings
of Fact”:
10. ... The job categories used by the parties’
experts do not correspond with the jobs in the de-
fendant Agency. Neither do plaintiffs’ nor de-
fendant’s experts adequately explain that the
tasks actually performed by the employees at
the Agency, in the job categories analyzed,
correspond in any more than a very general and
speculative way to those utilized by the parties’
experts.
11. Cross-mapping of actual employee activities
for purposes of comparison with statistics con-
cerning available labor pools is appropriate and
useful where the inquiry is of general non-
specialized skills. While statistics are helpful and
useful in many cases, it must be understood that it
cannot be argued or found in this case that
precise labor pool availability figures can be
derived to determine the number of females
available for employment in such specialized
fields as, for example, Cambodian language
news analyst/writer/broadcaster.
Id. at 8-9, J.A. at 75-76 (footnote omitted) (emphasis
supplied).
47a
While definition of the relevant labor market is
normally reviewable under the “clearly erroneous”
standard as an “essentially factual matter within the
special competence of the district court,” Castaneda
v. Pickard, 648 F.2d 989, 1008 (5th Cir. 1981); see
Hazelwood, 433 U.S. at 312-13, 97 S.Ct. at 2744, “if the
trial court bases its findings upon a mistaken impres-
sion of applicable legal principles, the reviewing court
is not bound by the clearly erroneous standard.”
Inwood Laboratories, Inc. v. Ives Laboratories, Inc.,
—- US. ’ n.15, 102 S.Ct. 2182, 2189 n.15, 72
L.Ed.2d 606 (1982). A close scrutiny of the legal
underpinnings of the district court’s fact finding is
appropriate here because the court’s decision was
expressly based on its interpretation of the standard
of proof enunciated in Hazelwood and Teamsters. The
district court observed that Hazelwood “indicated
that statistics comparing the employer’s work force
and the relevant labor market must be based on the
labor pool truly relevant to the employer’s potential
work force,” and concluded that “the statistics suffer
from the following deficiency, as noted by the
Supreme Court in Teamsters: Imprecise definitions
of the relevant labor market when particular quali-
fications are required for the job(s) in question.”
Medina I at 12, J.A. at 79. We conclude, however,
based on our examination of these cases, that the
standard of precision the district court demanded, far
from being mandated by these cases, is unprecedented
and unjustifiable, insofar as it results in a total
rejection of the Census data as a basis for statistical
comparisons to establish a prima facie case.
The methods employed in this case by the experts
on both sides to identify Census categories com-
48a
parable to Agency positions, in fact, closely track that
adopted in Hazelwood and by other courts, see, e.g.,
Rivera v. City of Wichita Falls, 665 F.2d 531 (5th Cir.
1982);- Croker v. Boeing Co. (Vertrol Div.), 487
F.Supp. 1138 (E.D.Pa.1977), affd, 662 F.2d 975 (3d Cir.
1981). Both experts subdivided the Agency work force
into occupational categories and sought to translate
each Agency category into Census terminology
(“cross-map”) by reference to the U. S. Department of
Commerce, Bureau of the Census, Alphabetical Index
of Industries and Occupations (1971) (Defendant’s
Exhibit No. 2) which lists “approximately . . . 23,000
occupation titles in aiphabetical order.” /d. at iii.
The Alphabetical Index explains the design of the
Census classification system which groups those
titles under some 440 occupational categories. Each
category includes all the titles considered to be part
of the same occupation.
To organize and make understandable the informa-
tion relating to the many thousands of industries
and occupations, a system of homogeneous group-
ing or classification must be used. Homogeneous
titles are grouped together to form the various
categories which comprise the system... . In this
Index each title is identified by the code for that
category to which it is assigned.
For example, plaintiffs’ expert explained the com-
position of the Census category “Editors and Re-
porters.”
Census Code 184, covering editors and reporters,
is a list of about 100 titles which all fit into a
journalistic type of occupational group, including
just, for example, editor, feature writer, foreign
a A
49a
correspondent, newspaper writer, and newspaper
editor.
Trial Transcript (“Tr.”) at 82 (May 29, 1979) (testi-
mony of M. Rosenblum).
The defendant’s expert testified that in the “over-
whelming majority of occupations” cross-mapping is
accomplished by looking up the Agency position title
in the Index and identifying the Census category to
which it belongs. Tr. at 19 (June 1, 1979) (testimony
of S. Wolfbein). Where relevant Agency job titles
were not included in the Alphabetical Index, defen-
dant’s expert testified that he translated Agency
categories into Census terminology based on job
descriptions provided by the Agency. Tr. at 23 (June
1, 1979) (testimony cf S. Wolfbein). Plaintiffs’ expert
testified that he consulted job descriptions in order to
cross-map all the relevant positions.
I consulted the 118 Manual to read the job descrip-
tion, as published by Civil Service, covering those
Civil Service titles and codes that are used by all
federal agencies.
In a number of these instances I also consulted
material published by the Agency, itself, to
augment and fill in additional descriptions.
So that I got a better sense in my own mind of
specifically which Census occupational category
would be appropriate for this cross-mapping
exercise.
Tr. at 83 (May 29, 1979) (testimony of M. Rosenblum).
Plaintiffs’ expert testified that he also consulted an
Office of Personnel Management (“OPM”) study that
translated white collar civil service jobs into Census
50a
terms, although he disagreed with OPM’s cross-
mapping in one instance.
Because the Census has fewer occupational catego-
ries (approximately 440) than the more detailed Civil
Service system (over 1,000), the cross-mapping neces-
sarily involved fitting some Agency occupational
categories at issue in the class action into broader
Census categories. For example, based on Census
coding, the defendant’s expert placed both the Agency
positions entitled “Radio Broadcast Technician” and
“Electronic Technician” in the Census category en-
titled “Electrical and electronic engineering techni-
cians.” Tr. at 20, 93-94 (June 1, 1979) (testimony of S.
Wolfbein). He also placed both “Writers/Editors” and
“Foreign Information Specialists” in the Census
category “Editors and Reporters.” Jd. 103-04. We are
satisfied that comparing Agency occupational catego-
ries to the broader Census categories is appropriate
because all types of jobs the Census includes within
any given Census occupational category are sub-
specialties of that occupation; thus, such aggrega-
tions retain “generally similar job skills” in common.
Valentino v. USPS, 674 F.2d at 68. (“The burden of
comparing appropriate groups in terms of minimum
objective qualifications, onerous here because of the
disparate occupational categories involved, is far
more tractable when all members of the class are
professional, administrative or technical employees
with generally similar job skills and seek [employ-
ment in or] advancement to positions involving those
same skills.”). Our conclusion is supported in this
case by the more refined cross-mapping attempted
where Agency occupations involved skills arguably
reflected in more than one Census occupational cate-
ete nao ary ee wT Ge
5la
gory. As we have pointed out, the experts agreed on
the basic methodology involved in identifying the
relevant labor pool although they disagreed as tu
which Census occupational category more properly
encompassed certain Agency positions. As these dis-
agreements came only in fine-tuning the compari-
sons, however, they do not deprive the statistics of
probative value, but, in fact, enhance it since the
disagreements caused the experts to focus on specific
Agency job requirements and tasks and thus accom-
plish the cross-mapping with considerable attention
to detail.* To the extent that the experts disagreed on
4 Plaintiffs’ expert, for example, testified that he disagreed
with defendant’s expert on the classification of “Radio Broad-
cast Technician.”
Q ... [I]n the category “Civil Service Code 3940,” which
is listed as radio-broadcast technician, according to your
Exhibit 35, you put it in the Census Code 171, radio
operator.
Is that correct?
A That is correct.
Q Did you consider the category 153, electronic techni-
cian?
A I reviewed that category and did not believe that it as
accurately represented the appropriate cross-mapping as
the category I used.
A number of the categories contain multiple references
to occupations that are similar.
The weight must fall on a more detailed analysis of the
job descriptions and the related categories that entail
similar work.
The difference between those categories essentially
would fall into the idea that the Category 153, which its
full title is “Electrical and Electronic Engineering Techni-
cian,” is a more technical and mere skilled occupation than
the radio operator.
And an examination of the definition in the Handbook of
Blue-Collar Occupational Families put ovt by the Civil
Service Commission, the Agency’s own qualification sheet
for radio-broadcast technician, and the Standard Occupa-
tionai Classification Manual, would, in fact, lead one to
the conclusion, as it did me, that the appropriate cross-map
for radio-broadeast technician is radio operator, rather
than the engineer.
I could read to you the entire list within the classified
index of occupations coming under the categories both
electronic and electrical-engineering technicians 153 and
radio operators 171.
But, just briefly, under radio operator 171, it includes
broadcast engineer, control-records and tape-recordings
engineer, field engineer, transmission engineer. That is
several of them.
And if we look at the radio-operator group in the Stan-
dard Occupational Classification Manual, the description
for that jcb family “includes occupations involving operat-
ing and maintaining radio equipment for communications
with aircraft ships and other ground stations and trans-
mitting radio and television broadcasts.”
I would also suggest that the job description of the
Agency’s own qualifications sheet for radio-broadcast tech-
nician and the detailed descriptions described for category
3940, radio-broadcast technician, in the Handbook of Blue-
Collar Occupations, published by the U. S. Civil Service
Commission, would clearly indicate that we are talking
about a radio operator, and not the more detailed and
highly skilled electronic-engineering technician, which is
Census Code 153.
:
r
:
3
a
F
Prerar)
AT PR Ee ae ae ee
58a
the appropriate Census category to which Agency
categories should be compared, we of course defer
under the “clearly-erroneous” standard, see Fed. R.
Civ. P. 52(a), to the district court’s judgment as to
which comparison has the greater probative value.
And, we would not second-guess the district court as
to other areas of disagreement between the experts
which the court did not decide, e.g., whether 1970
Census data or 1978 Labor Department data provided
the appropriate set of figures. We decide only that the
cross-mapping by both experts here provided an
By Ms. Futch:
Q Is it then your testimony that, as a matter of pro-
fessional judgment, you selected category 171 versus 153°
A Well, any time there is a difference in this kind of
classification, it obviously would entail some professional
judgment.
I believe a close reading of all of the evidentiary sources
suggests that the category that I have selected is appropri-
ate.
If we are looking at radio operator 171, let me read
further from the Handbook of Blue-Collar Occupational
Families, published by the Civil Service Commission, re-
lating to radio-broadcast technician.
Some of these descriptions include duties of supervising
or performing tasks associated with transmitters and an-
tennas, broadcast studio consoles, radio and TV broadcasts,
including starting up and shutting down the transmitter,
adjusting tone and volume, monitoring through loud-
speakers, headphones, or video, observing volume indica-
tors, making minor repairs and changing parts, and
keeping an operating log of the station.
That sounds to me pretty much like a radio operator.
Tr. 128-31 (May 29, 1979) (testimony of M. Rosenblum).
54a
adequate basis from which to derive meaningful dis-
parity figures in order to decide if a prima facie case
of discrimination in hiring was made out.
A review of the statistical comparisons sanctioned
in Hazelwood bolsters our conclusion that the dis-
trict court imposed an inappropriately high standard
of precision between Agency and Census job cate-
gories. The Hazelwood Court was satisfied with data
that limited the relevant labor pool to those in the
general Census occupational category of secondary
school teachers although this data aggregated diverse
teaching positions not subdivided on the basis of
subject matter taught. Thus, the district court mis-
takenly relied on Hazelwood for authority that
plaintiffs must provide data comparing the labor
market for every combination of skills required in
every one of the more than 2,000 Agency jobs at issue.
We do not believe a plaintiff is required to prove that
each individual in the comparison pool is qualified in
every way for a particular Agency position. The
objective is to define “a population that closely
approximates the characteristics of those who would
be likely to apply” and “meet legitimate threshold
qualification requirements.” D. Baldus & J. Cole,
Statistical Proof of Discrimination 120 (1980) (empha-
sis supplied). The focus thus should be on whether
the Census statistics give us a meaningful estimate
of the proportion of women in the labor market
reasonably likely to possess the minimum qualifica-
tions needed for the Agency jobs in question.
We agree with the district court that the ICA posi-
tions at issue are properly treated differently from
the bulk of federal government jobs which are gener-
ally professional, administrative and managerial posi-
PIR ee eee PE ee ee sia # ve a seis a8
55a
tions for which no differentiated training or educa-
tional standards are imposed as minimal qualifica-
tions. And we agree as well that the test was not met
in a case like Valentino, where the statistics “did not
group employees by job category,” 674 F.2d at 70, nor
“hone in on the wide variety of minimum objective
qualifications required of applicants for the diverse
... positions” at issue. Id. at 61. In Valentino, where
discrimination in promotion was charged, it would
indeed have been “irrational to assume ‘equal qualifi-
cations’ to fill engineering or secretarial vacancies,”
as the plaintiffs urged, simply because employees
were “educated the same number of years and em-
ployed by the government for the same length of
time.” Id. at 71. See also Metrocare v. WMATA, 679
F.2d at 930 (no showing that “persons now holding
secretarial or clerical jobs are qualified for [pro-
motion to] managerial positions”). The data in this
case, however, did hone in on the basic technical
skills—“the minimum objective qualifications,” Va-
lentino v. USPS, 674 F.2d at 68 (quoting Davis v.
Califano, 613 F.2d at 964)—prerequisite to employ-
ment in particular Agency occupational categories.
The expert testimony reveals the comparisons of
Agency and Census occupational categories were
based on common job requirements and were accom-
plished in some instances with much greater pre-
cision than in Hazelwood. It should be noted again
that in Hazelwood the comparison pool included
public school teachers whether they taught, for
example, natural science or a foreign language.
Therefore we do not deem it fatal to plaintiffs’
prima facie case that the Census occupational data
failed to take account of foreign language skills
56a
prerequisite to employment in certain Agency posi-
tions. “[N]lot every conceivable factor relevant to [an
employment] decision must be included in the statisti-
cal presentation....” Davis v. Califano, 613 F.2d at
964. See, eg., Trout v. Hidalgo, 517 F.Supp. 873
(D.D.C.1981):
Certainly, plaintiffs’ expert did not, in his an-
alysis, account for each of the factors that the
government suggests should have been considered.
It is also true that a model which incorporated
additional potentially relevant factors (such as
type or quality of education and experience) would
form a more perfect foundation for determinations
regarding allegations of discrimination. However,
defendants have furnished no evidence that
inclusion of the missing variables or refinement
of others would have altered rejection of the
hypothesis of no discrimination. Indeed, they
failed to offer any evidence indicating that type
of education and experience or quantity of
experience per age was distributed unequally
among... women and men in the .. . population.
517 F.Supp. at 881 (emphasis supplied).
Here, many, if not most, of the jobs involved do not
require foreign language skills at all.° Thus, to the
extent that the district court rejected the statistics
5 See Talev v. Reinhardt, 662 F.2d 888, 893 (D.C.Cir.1981)
(ICA’s Worldwide English Division broadcasts for many more
hours each day than foreign-language programs). In fact, one
of the named plaintiffs applied for a Writer/Editor position
which did not require foreign language skills. Tellingly, the
defendant has not pointed to evidence, easily accessible to him,
of the number of positions that would require specific foreign
language skills.
for failure to account for such skills, the court im-
posed an additional and unnecessary requirement for
a large number of Agency positions. Further, with
respect to positions which include specific foreign
language skills among the minimum objective qualifi-
‘ations (e.g., “Cambodian language news analyst/
writer/broadeaster”), the court articulated no basis
for the assumption that such skills are in fact un-
evenly distributed between men and women generally
or in the particular occupations involved. The more
logical assumption, barring proof to the contrary, is
that equal numbers of men and women possess skill in
any given language; thus, the proportion of women
qualified for Agency positions would not necessarily
change if this variable were included in the occupa-
tional data. And, practically, statistical data, so far as
we can tell from the record, are simply not available
correlating 440 Census occupational categories with
several dozen foreign language skills; in their ab-
sence, we think it appropriate here to afford plaintiffs
the benefit of a rebuttable presumpticn of an equal
distribution of the relevant language skills.’
6 In contrast, in Valentino, the plaintiffs’ expert did not
submit qualification data that were available. Valentino v.
United States Postal Serv. (USPS), 674 F.2d 56, 71 n.23 (1982)
(“Valentino’s statistical analyst had the occupational codes for
USPS Headquarters employees at level 17 and above; he did
not explain why he did not pursue analyses utilizing them.”).
7 The potential for injustice to the claimant argues for a
reduced level of proof when relevant qualification data are
unavailable; on the other hand, lowering the claimant’s burden
of proof increases the risk that the disproportionate impact
observed in the record may be improperly attributed to the
defendant’s bias when it was caused by the application of
legitimate selection criteria. Nevertheless, even if relevant
variables are not accounted for in a plaintiff’s proof, the
58a
We underline that we are dealing here with the
showing necessary for a prima facie case only. “In a
Title Vil case, the allocation of burdens and the
disparities in treatment may be sufficiently large to raise
legitimate questions about their cause.
Both equitable considerations and, in Title VII cases, the
policy of the statute, support a rebuttable presumption of an
equal distribution of qualifications between minority and
majority group applicants when data are unavailable. The
presumption should place on the defendant the burden of
producing evidence from which it is possible to evaluate the
likelihood that the disproportionate impact was caused by
unequal qualifications. Possible sources of evidence include: (a)
the defendant’s recollection of prior applicants, (b) a random
sample of potential applicants or the defendant’s current
applicants, (c) data on the quzlifications of applicants processed
by similarly situated decision makers, and (d) published work
force or census data.
The justification for placing this burden on the defendant is
threefold. First, it was the defendant’s selection process that
produced the observed disproportionate impact, and it is he
who is alleging that it is the product of differential
qualifications among the applicants. Moreover, the defendant
has better access to data on the qualifications of applicants than
does the plaintiff. Second, the equal qualifications assumption
is often reasonable since many unqualified people are deterred
from applying by knowledge of qualifications requirements.
Third, in Title VII cases, the logic of the Act’s underlying
purpose, which places on an employer the burden of justifying
an adverse impact produced by a neutral selection rule,
suggests that an employer whose discretionary selection
process produces a substantial disproportionate impact, whose
proof takes into account all relevant qualifications on which
data are reasonably available, should shoulder a similar burden
of coming forward with evidence that explains those results or
suffer the inference that it was intentionally caused.
D. Baldus & J. Cole, Statistical Proof of Discrimination 194-95
(1980).
S pee A Bcte tal
EE te
Te RO ee ee Ee POLL | Eee ae:
“5 Aes
59a
creation of a presumption by the establishment of a
prima facie case is intended progressively to sharpen
the inquiry into the elusive factual question of
intentional discrimination.” Texas Dept. of
Community Affairs v. Burdine, 450 U.S. at 225 n.8,
101 S.Ct. at 1094 n.8 (emphasis supplied). Exactness
is not required at the prima facie stage. As a
consequence, in rebuttal, a defendant need only raise
“a genuine issue of fact as to whether it
discriminated” and need not even “persuade the court
that it was actually motivated” by nondiscriminatory
reasons. Id. at 254, 101 S.Ct. at 1094. The defendant
here is certainly entitled to rebut plaintiffs’ showing
with evidence, more readily available to it than to
plaintiffs, that, as to certain jobs with foreign
language requirements, there are disproportionately
fewer qualiiied women candidates available or even
that bona fide recruitment efforts have resulted in a
proportionately lower number of qualified female
applicants than men. Cf. EEOC v. Radiator
Specialty Co., 610 F.2d 178, 185 n.8 (4th Cir. 1979)
(“Requiring the defendant to show the inappro-
priateness of general population statistics in such
situations follows the principle of allocation of proof
to the party with the most ready access to the
relevant information.”). We find it significant here,
however, that the defendants themselves did not
argue to the trial court that failure to control for
language invalidated the occupational compar isons.”
8 The dissent would affirm on this issue because of “plain-
tiffs’ failure to adjust their definition of the relevant labor
market to account. for” the requirement of foreign language
skills. Diss. Op. at 1015 [74a]. We believe the dissent’s analysis
to be flawed. First, neither party raised such an objection to
the relevant labor pool data at trial; it was raised by the district
60a
court in its findings. And then the only reference in those
findings to language skills is the one example of a “Cambodian
language news analyst/writer/broadcaster.” Medina I at 9,
J.A. at 75-76.
Second, the dissent would appear to require Title VII plain-
tiffs in an agency like the ICA to introduce, as part of their
prima facie case, applicant flow data to demonstrate the distri-
bution of language skills in the pool of those otherwise quali-
fied. Diss. Op. at 1016 n.3 [76a]. We cannot agree. Cf. Dothard
v. Rawlinson, 433 U.S. 321, 330, 97 S.Ct. 2720, 2727, 53 L.Ed.2d
786 (1977) (“There is no requirement . . . that a statistical show-
ing of disprovortionate impact must always be based on analysis
of the characteristics of actual applicants.”). Applicant-flow
data may be “relevant,” Hazelwood School Dist. v. United
States, 433 U.S. 299, 308 n.13, 97 S.Ct. 2736, 2742 n.13, 53
L.Ed.2d 768 (1977), but “has to be carefully assessed in light of
the particular situation in issue.” Patterson v. American To-
bacco Co., 634 F.2d 744, 753 (4th Cir. 1980) (en banc), rev’d on
other grounds, —- U.S. ——, 102 S.Ct. 1534, 71 L.Ed.2d 748
(1982). Actual discrimination or the appearance of discrimina-
tion may discourage qualified women from applying; also,
“{djiscriminatory recruiting practices may skew the... . com-
position of the applicant pool.” Castaneda v. Pickard, 648
F.2d 989, 1003 (5th Cir. 1981) (citing B. Schlei & P. Grossman,
Employment Discrimination Law 445 (1976)). Cf. Dothard v.
Rawlinson, 433 U.S. at 330, 97 S.Ct. at 2727 (“The application
process itself might not adequately reflect the actual potential
applicant pool, since otherwise qualified people might be dis-
couraged from applying because of a self-recognized inability to
meet the very standards challenged as being discriminatory.”).
Thus, plaintiffs cannot be required to rely on data that, if their
contentions even appear to be true, may be biased against them.
But, even in the absence of reliable data, the dissent would
punish “plaintiffs’ failure to produce evidence on the matter,”
Diss. Op. at 1016 n.3 [76a], by refusing to make the logical
inference that as many women as men speak any given
language either as their mother tongue or as a_ second
language. The dissent hypothesizes that factors not a matter of
record, “such as the relative rate of immigration,” id., might
6la
affect the distribution of certain language skills. Of course
evidence not in the record may also show women more likely
than men to be fluent in a second language. See, ¢.g.,
Department of Commerce, Statistical Abstract of the United
States 1970, at 131 (14,201 women earned bachelors degrees in
foreign languages and literature compared with 5,321 men;
2.794 women, 2,071 men earned master’s; 204 women, 503 men
earned doctorates). The real point, however, is that the Census
data on which plaintiffs relied did not correlate language with
occupational skills, and, for want of this correlation, plaintiffs
should not be thrown out of court.
Finally, and most importantly, we cannot accept the dis-
sent’s acceptance of the district court’s perception of the prima
facie case: “{tJhe district court seemed to require proof to a
mathematical certainty, but there is no such requirement.”
Detroit Police Officers’ Ass’n v. Young, 608 F.2d 671, 687 (6th
Cir. 1979), cert. denied, 452 U.S. 938, 101 S.Ct. 3079, 69 L.Ed.2d
951 (1981). Although “[dJeficiencies in the data base ‘may, of
course, detract from the value of such evidence, .. . [they]
ordinarily would not obliterate its evidentiary value.” /d.
(quoting Teamsters, 431 U.S. at 340 n.20, 97 S.Ct. at 1856 n.20).
Even so, the Teamsters caveat, echoed in Hazelwood, that
labor pool statistics should reflect the qualified population
should be understood in the context of a case in which general
population figures were submitted. Courts have since question
ed whether “general population and work force data [are]
appropriate as the basis for statistical comparison” where
special qualifications exist, Patterson v. American Tobacco Co.,
634 F.2d at 753-54 (emphasis supplied), but “Hazelwood did not
entirely rule out (their) use [even] in ‘special qualification’
vases.” Id. at 754 n.15. Here, the base data were not general
work force data, but occupation-specific data. The dissent
would require job-specific data, but the source of this require-
ment is unclear. Neither this court nor the Supreme Court has
ever required Title VII class action plaintiffs to present non-
existent data on the population qualified for each position, as
opposed to particular occupational categories. As we have
observed, if such a requirement had been imposed, the statistics
62a
We therefore cannot accept the district court’s
total rejection, as too imprecise, of both experts’ com-
parisons of Agency occupational categories with
Census occupational categories. Were trial courts to
apply Hazelwood and Teamsters as the court did here,
statistical evidence would rarely be acceptable in
Title VII class actions because statistical evidence is
virtually always lacking in the degree of precision
demanded by the district court. “[I]n most cases, con-
ditions are far from ideal, with incomplete qualifi-
cation data and non-random samples being the rule
rather than the exception,” D. Baldus & W. Cole,
supra, at 26-27. And yet the Supreme Court’s “cases
make it unmistakably clear that ‘[s]tatistical an-
alyses have served and will continue to serve an
important role’ in cases in which the existence
of discrimination is a disputed issue.” Teamsters,
431 U.S. at 339, 97 S.Ct. at 1856 (quoting Mayor of
Philadelphia v. Education Equality League, 415
U.S. 605, 620, 94 S.Ct. 1328, 1333, 39 L.Ed.2d 630
(1974)).
Thus relevant labor pool statistics are commonly
used although it is rarely possible to be exact in the
definition of the relevant labor pool. Sometimes
imprecision works to the detriment of plaintiffs as
well as defendants. For example, a comparison labor
pool based on Census employment statistics does not
include all those qualified. “[C]Jensus statistics
analyzing the population by job skill include[ | in each
skill category only people actually employed in those
skill categories. People qualified for, but not em-
ployed in, such positions [are] omitted from the
used in Hazelwood would have been inadequate for purposes of
estimating the qualified population.
63a
statistics quantifying the proportion of the population
eligible for the type of employment in question.”
Rivera v. City of Wichita Falls, 665 F.2d at 544 n.19.
Certain defects in statistical evidence may, of course,
be fatal to a plaintiff's case, as in Valentino where
comparisons were grossly imprecise or in a case,
hypothesized in Valentino, where the sample size is
inordinately small. Valentino v. USPS, 674 F.2d at
66 n.12 (citing Wilkins v. University of Houston, 654
F.2d 388, 409 n.37 (5th Cir. 1981)) (“(T]he breakdown of
highly specialized workplaces into occupational cate-
gories for the purpose of examining the treatment of
similarly qualified employees may yield numbers too
small to conduct certain types of statistical analyses
relied upon to show discrimination in workplaces iess
specialized.”) But because “statistical measures are
necessarily imperfect in differing ways and varying
degrees,” the courts generally “accept what figures
are available; allow for imperfections, skewing fac-
tors, and margins of error; and then take the figures
for what they are worth. Sometimes this is much,
sometimes little.” Phillips v. Joint Legislative Com-
mittee on Performance and Expenditure Review,
637 F.2d 1014, 1025 (5th Cir. 1981), cert. denied, —
U.S. ——, 102 S.Ct. 2233, 72 L.Ed.2d 845 (1982).
In the usual case, statistics are not intended to
“conclusively prove intentional discrimination. ... In
recognition of [the] limits on the potential of
statistics as a basis for an inference, the courts have
given statistical proofs a question-raising, burden-
shifting function.” D. Baldus & W. Cole, supra, at
26-27. We find the base data here to be sufficiently
precise and consistent with statistical and legal
norms to permit an inference of discrimination if
64a
statistically significant disparities exist. We there-
fore remand for reconsideration of whether plaintiffs
made a prima facie showing of Agency discrimination
in hiring.
B. Required Findings
Plaintiffs also protest on appeal that, with respect
to the class claims of promotion discrimination and
retaliation,’ the district court’s opinion was deficient
under Fed.R.Civ.P. 52(a) which requires that a court
sitting without a jury “find the facts specially and
state separately its conclusions of law thereon.”” It
is established that the requirement of fact findings
cannot be met by a “statement of ultimate fact with-
out the subordinate factual foundations for it which
must be the subject of specific findings.” O'Neill v.
United States, 411 F.2d 139, 146 (8d Cir. 1969).
% Plaintiffs’ retaliation claim was brought under 42 U.S.C.
§ 2000e-3(a):
It shall be an unlawful employment practice for an
employer to discriminate against any of his employees or
applicants for employment, for an employment agency, or
joint labor-management committee controlling apprentice-
ship or other training or retraining, including on-the-job
training programs, to discriminate against any individual,
or for a labor organization to discriminate against any
member thereof or applicant for membership, because he
has opposed any practice made an unlawful employment
practice by this subchapter, or because he has made a
charge, testified, assisted, or participated in any manner in
an investigation, proceeding, or hearing under this sub-
chapter.
10 Appellants argue that Rule 52(a) also required the court
to make findings of fact upon denial of their motion for a pre-
liminary injunction. We regard this issue to be moot.
65a
Further, the fact findings must touch all material
issues. “For this court to exercise adequately its
power of review, the district court must make specific
findings about the nature and truth of [plaintiffs’]
allegations.” Borrell v. ICA, 682 F.2d 981 at 992
(D.C.Cir.1982). Because the district court’s opinion
is bereft of reference to the retaliation claim, we must
remand for findings on this issue. We are satisfied,
however, with the court’s findings on the promotion
discrimination claim.
To support an inference of discriminatory pro-
motion practices, the plaintiffs introduced undisputed
government statistics showing the small percentage
of women in higher level Agency positions. E.g., the
Agency’s FY-1978 Affirmative Action Plan, Sec. C,
Table 3 (Plaintiffs’ Exhibit No. 22(b)); U. S. Civil
Service Commission, Report on Review of Per
sonnel Management in the United States Information
Agency (Plaintiffs’ Exhibit No. 23). The plaintiffs’
proposed findings of fact with respect to the pro-
motion claim were based on this statistical evidence
and they object on appeal that the district court’s
opinion failed to include any reference to the data or
the inferences to be drawn therefrom. We, too, find it
troubling that, while the district court devoted five
pages of fact findings to the statistical evidence
related to the hiring discrimination claims, the court
ignored the statistical evidence presented on the
promotion claims. The court, however, acknowledged
the allegation of promotion discrimination, stating
the issue before it as “[w]hether the defendant’s
hiring, promotion and salary practices constitute
patterns or practices of discrimination... .” Medina I
at 3, J.A. at 70. And, although the court did not
66a
specifically discuss the statistical evidence on pro-
motion practices, it made findings based on de-
fendant’s testimonial evidence, concluding:
In addition to [defendant’s witnesses] very credible
testimony, the fact that these women have attain-
ed the positions they now occupy, and have done so
by rapid and consistent advancement, is dispositive
of the absence of any pattern or practice of dis-
crimination based on sex at the Agency at all
relevant periods in this litigation.
Medina IJ at 11, J.A. at 78. The “ultimate fact,” that
there existed no pattern or practice of discrimination,
was thus supported by the specific finding of
instances of accelerated promotion of women and
the credible testimony of women defense witnesses
regarding the absence of discrimination in “the
advancement of women in any manner.” Jd. at 11.
While this court would have been aided by an explicit
statement of the district court’s reasons for rejecting
the inference plaintiffs urged be drawn from the
statistics, the district court provided findings “suffi-
cient for a clear understanding of the basis of the
decision.” 9 C. Wright & A. Miller, Federal Practice
and Procedure § 2577 at 697 (1971).
In contrast, the district court’s opinion failed to
acknowledge the class retaliation claim. The court’s
recitation of the procedural history does not refer to
the supplemental complaint alleging retaliatory
practices nor do the “Findings of Fact” or “Con-
clusions of Law” address the claim. Because a
retaliation claim does not depend on whether the
challenged employment practices are determined to
be unlawful, see Parker v. Baltimore & O. R. Co., 652
67a
F.2d 1012, 1018-19 (D.C.Cir.1981), the court is requir-
ed to address the retaliation issue independently.
lil. The Individual Claims
The individual discrimination claims of Luba Med-
ina and Rose Kobylinski were the subject of a sepa-
rate trial and a second opinion in which the court
dismissed Medina’s claim on the merits and denied
jurisdiction over Kobylinski’s claim because she had
not filed a charge with the Equal Employment Op-
portunity Commission (EEOC), and thus had failed to
exhaust her administrative remedies as required by
42 U.S.C. § 2000e-16. Since the trial, however, the
Supreme Court has decided that the requirement of
timely filing is akin to a statute of limitations and is
not a jurisdictional prerequisite, Zipes v. Trans
World Airlines, — U.S. 102 S.Ct. 1127, 71
L.Ed.2d 234 (1982), and this court has held that “the
critical factor in determining whether an individual
Title VII plaintiff must file an EEOC charge, or
whether he may escape this requirement by joining
with another plaintiff who has filed such a charge, is
the similarity of the two plaintiffs’ complaints.”
Foster v. Gueory, 655 F.2d 1319, 1322 (D.C.Cir.1981),
We reverse the district court’s dismissal of Kobylin-
ski's claim because we find that her claim was so
similar to that made by Martinez, who had filed an
EEOC charge and with whom Kobylinski intervened
as a named plaintiff, “that it can fairly be said that no
conciliatory purpose would be served by filing sepa-
rate EEOC charges.” Jd. We affirm, however, the
court’s dismissal of Medina’s claim as based on fact
findings that are not “clearly erroneous.”
68a
A. Exhaustion of Administrative Remedies
In Foster v. Gueory, this court reversed the dis-
trict court’s denial of a motion to intervene in a
pending employment discrimination suit. The motion
had been denied on the ground that the parties who
sought intervention had failed to exhaust their admin-
istrative remedies, but this court concluded that the
purposes of the exhaustion requirement had been
served by the initial plaintiffs’ filing. The “principal
functions of the EEOC filing requirement” are to
enable “the EEOC to provide the alleged wrongdoer
with notice and to permit possible conciliation.” Jd. at
1323. The Foster court concluded that separate filing
is required of co-plaintiffs if there exists “a real
possibility that-one of the claims might be administra-
tively settled while the other can be resolved only by
the courts.” Jd. at 1822. But the court held that
where two plaintiffs allege that they were similarly
situated and received the same discriminatory treat-
ment, the purposes of the exhaustion requirement are
adequately served if one plaintiff has filed an EEOC
complaint." Here, the claims of Martinez and Koby-
1! The court relied in part on a line of cases that establish
that only one member of a class need file an EEOC charge.
The rationale of this line of cases was explained by
Judge Griffin Bell:
It would be wasteful, if not vain, for numerous em-
ployees, all with the same grievance, to have to process
many identical complaints with EEOC. If it is
impossible to reach a settlement with one discriminatee,
what reason would there be to assume that the next one
would be successful. (Emphasis added.)
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69a
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linski are virtually identical. Each claimed inten-
tional sex discrimination (as opposed to disparate
impact). Each was a GS-11 Agency employee who
based her claim on defendant’s failure to promote her
(as opposed to a failure to hire), Each also charged
that they performed like services for less pay than
men of similar qualifications and experience. Thus,
we find sufficient similarity between these claims to
doubt the likelihood that conciliation would prove
successful as to one where it had failed as to the
other.
As the district court found in its order granting the
motion to intervene, Hartman». Reinhardt, No.
77-2019 (D.D.C. Sept. 18, 1978), J.A. at 23, plaintiff
Martinez had exhausted administrative remedies with
regard to her claims. See Notice of Final Decision
of Agency (Aug. 30, 1978) (from EEO officer to
Martinez). We therefore hold that Kobylinski was not
Oatis v. Crown Zellerbach Corp., 398 F.2d 496, 498 (5th Cir.
1968). In class actions this rationale is invariably applicable,
for the very fact that the suit is a class action means that
the plaintiffs’ claims not only share common questions of
law and fact, but those claims are such that representative
plaintiffs will fairly and adequately protect the interests of
all plaintiffs of the class. Fed.R.Civ.Pro. 23(a)(3) & (4).
Foster v. Gueory, 655 F.2d 1319, 1322 (D.C.Cir.1981).
We do not rely on that line of cases here because recent
Supreme Court precedent suggests that the class certified here
may have been overbroad, General Telephone Co. v. Falcon, —
U.S. ——, 102 S.Ct. 2364, 73 L.Ed.2d 740 (1982) (employee
claiming promotion discrimination was not properly repre-
sentative of interests of applicants claiming hiring discrimina-
tion), and thus we do not presume from the mere fact of
Kobylinski’s class membership that there existed shared ques-
tions of law and fact.
70a
required to file an EEOC charge, and remand her case
to the district court for a decision on the merits.
B. Medina’s Claim
Appellant Medina protests that the dismissal of her
individual claims was based on the district court’s
misinterpretation of the standard of prima facie proof
enunciated in McDonnell Douglas Corp. v. Green,
411 U.S. 792, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973).
However, in dismissing Medina’s claim, the court ul-
timately relied on the adequacy of defendant’s re-
buttal evidence. As the court’s findings are not
“clearly erroneous,” we affirm the court’s disposition
of Medina’s claim.
Medina claims that the Agency discriminated
against her both on the basis of sex and in retaliation
for her previous EEOC complaints and her husband’s
representation of minorities in EEOC actions. At
trial she presented evidence regarding three separate
instances of alleged discrimination: (1) the denial of
the opportunity to retest for a newsroom position
following an unsatisfactory test performance several
months earlier; (2) the Agency’s rejection of her
application for a radio production position; and (3) the
Agency’s rejection of her application for a position as
a foreign language broadcaster.
The district court found that Medina was entitled
to retake the test and ordered the Agency to allow a
retest, but the court further found that the Agency’s
denial of Medina’s right to retest was a mistake
rather than discrimination. As to the Agency’s
rejection of both job applications at issue, the court
found that Medina’s proof failed to satisfy the last of
the four prerequisites to a prima facie showing
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enumerated ,in McDonnell Douglas. The court
understood McDonnell Douglas to require that a
discrimination plaintiff show:
(1) he or she is a minority group member;
(2) he or she applied for a job with the defendant
and was qualified for the position;
(3) he or she was rejected despite his or her
qualification; and
(4) after the rejection, the job remained open,
and the defendant sought other applications.
Medina II at 8, J.A. at 125. To the extent that the
court treated these factors as delineating the only
circumstances that might give rise to an inference of
unlawful discrimination, the court erred. In fact,
McDonnell Douglas defines but one “model” of such
circumstances. Texas Dept. of Community Affairs
v. Burdine, 450 U.S. 248, 253 & n.6, 101 S.Ct. 1089.
1093 & n.6, 67 L.Ed.2d 207 (1981). But the district
court’s error is not dispositive because the court
further stated that even if a prima facie case had
been made out, the Agency had articulated legitimate
nondiscriminatory reasons for its actions and that
defendant’s proof showed these reasons were not
pretextual. This conclusion rested on the court’s
finding that “other qualified individuals were selected
in lieu of Ms. Medina.” Medina IJ at 10-11, J.A. at
127-28.
In reviewing the court’s findings that the chal-
lenged personnel actions resulted from mistake in one
instance and reflected legitimate employment deci-
sions in the others, we are bound to give “due regard
... to the opportunity of the trial court to judge the
credibility of the witnesses,” and we may not set aside
these findings unless they are “clearly erroneous.”
Fed.R.Civ.P. 52(a). While, again, we would have been
aided on review by discussion of the specific evidence
upon which the court relied, we find, in the record,
evidence that supports the court’s findings. In as-
sessing the qualifications of the man selected in lieu
of Medina as Radio Production Specialist, the court
relied on the application he submitted to the Agency
which described a long career as a “News Director/
Announcer.” Defendant’s Exhibit No. 38, J.A. at 409.
The court based its findings as to the qualifications of
persons selected as foreign language broadcasters
upon the testimony of the Chief of the Ukranian
Service of the. Voice of America, who specifically
identified her reasons for selecting the other candi-
dates over Medina. Tr. at 200-01 (Dee. 16, 1980)
(testimony of O. Dragan). We find no reason to
abandon the presumption that the trial court cor-
rectly assessed the evidence and the witnesses’
credibility.
Finally, the court did not explain its conclusion
that Medina was denied a retest by mistake rather
than due to discrimination. We note, however, that
the testimony about the incident recounts only that
Medina was told there would be “no point” to a retest,
Tr. at 102 (Dec. 15, 1980) (testimony of L. Medina), and
that her initial performance had received “fairly
severe ratings,” EEOC Report of Investigation,
Attachment F-1 (Affidavit of Bernard Kamenske
(Nov. 29, 1976)), Defendant’s Exhibit No. 39 (Pt. II).
The district court could infer from this evidence that,
while Medina ought to have been allowed to retest,
which the court ordered, she was discouraged from
doing so because of the extreme unlikelihood of her
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73a
improving her performance sufficiently to meet the
Agency’s standards rather than because of dis-
criminatory intent. Accordingly, we affirm the
court’s dismissal of Medina’s claims of discrimina-
tion.
In view of the foregoing, the case is remanded to the
district court for proceedings not inconsistent with
this opinion.
So Ordered.
CELEBREZZE, Senior Circuit Judge, concurring in
part and dissenting in part:
I agree with the majority’s disposition of the class
promotion and retaliation claims. The majority pro-
perly remanded these class claims for more compre-
hensive findings of fact. The majority also properly
concludes that the district court has jurisdiction to
hear Ms. Kobylinski’s claim. I believe, however. that
the district court properly found that the plaintiffs
had failed to establish a prima facie case of dis-
crimination because the plaintiffs statistical evi-
dence does not support an inference of discrimination.
Therefore, I cannot agree with the majority’s
conclusion that the district court improperly dis-
counted the statistical evidence when determining
whether a prima facie case had been established.
The majority concludes that the plaintiffs’ statisti-
cal proof’ is sufficient to support an inference of
' The plaintiffs’ statistical proof indicated that substantial
disparities existed in four job categories: electronic te: hnicians,
radio broadcast technicians, writers/editors, and foreign infor-
mation specialists. The plaintiffs’ expert concluded that these
74a
discrimination and, thus, that the district court erred
in assigning little weight to the evidence. It reasons
that the relevant labor market, as defined by the
plaintiffs, adequately reflects the qualifications nec-
essary for employment by the Agency.* Although it
concedes that many Agency positions require skill in
a foreign language the majority concludes that the
plaintiffs’ failure to adjust their definition of the
relevant labor market to account for this factor does
not create a serious flaw in the statistical com-
parisons. In support of this conclusion, the majority
asserts that we may logically assume that foreign
language skills are equally distributed between men
and women and that statistical data regarding foreign
language skill may not be available. Finally, the
majority indicates that the defendant should carry
the burden of rebutting the plaintiffs’ statistical
evidence by showing that female applicants are not so
likely as male applicants to possess the requisite
language skills.
I believe that the district court correctly concluded
that the plaintiffs failed to establish a prima facie
case. The question of whether the plaintiffs have
established a prima facie case depends upon the
weight assigned the statistical proof presented by the
disparities were statistically significant, with less than .05 pro-
bability that the disparities resulted from chance.
* The experts of both parties compared the Agency job
categories with the most similar job categories used by the
Census Bureau in compiling its statistics. Upon completing the
“cross-mapping,” the expert then compared, in each job cate-
gory, the percentage of the external labor force which is
female with the percentage of the Agency’s labor force which
is female.
75a
parties. The plaintiff, in order to establish a prima
facie case, must produce sufficient evidence to raise
an inference of discrimination on the part of the
defendant. International Brotherhood of Teamsters
v. United States, 431 U.S. 324, 358, 97 S.Ct. 1843, 1866,
92 L.Ed.2d 396 (1977); Valentino v. United States
Postal Service, 674 F.2d 56, 67 (D.C.Cir.1982). When
the plaintiffs seeks to raise the inference by means of
statistical proof, they have the “burden of comparing
appropriate groups in terms of minimum objective
qualifications ...” Id. at 68. See Id. at 68 n.17, 71 n.24:
Wilkins v. University of Houston, 654 F.2d 388, 408
(5th Cir. 1981). Thus, the plaintiffs must either pro-
duce statistical proof which compares the Agency’s
workforce with that segment of the labor market
which possesses the minimum skills necessary for
employment by the Agency (including language
skills) or demonstrate the validity of their compari-
sons by showing that foreign language skill is not a
minimum qualification for the job categories being
compared. The plaintiffs have failed to make either
showing; consequently, the statistical evidence is
insufficient to raise an inference of discrimination
and, thus, is insufficient to establish a prima facie
case of discrimination.
The failure of the plaintiffs to include foreign
language skill as a factor in defining the relevant
labor market seriously flaws the statistical com-
parison made by the plaintiffs. Generally, the rele-
vant labor market is the group of workers from which
the employer hires its employees. United States v.
Ironworkers Local 86, 443 F.2d 544 (9th Cir.), cert.
denied, 404 U.S. 984, 92 S.Ct. 447, 30 L.Ed.2d 367
(1971). When properly defined, the relevant labor mar-
"hy,
rey
76a
ket should contain only persons with the minimum
qualifications necessary for the pertinent positions.
See Hazelwood School District v. United States, 433
U.S. 299, 308 n.18, 97 S.Ct. 2736, 2742 n.13, 538 L.Ed.2d
768 (1977); Ste. Marie v. Eastern Railway Ass’n, 650
F.2d 395 (2nd Cir. 1981). If a comparison is made to an
improperly defined labor market, the conclusions
drawn may be misleading, because the data are likely
to distort the population of a particular minority
available to fill a particular position. See Mayor v.
Educational Equality League, 415 U.S. 605, 620-21,
94 8.Ct. 1823, 1333, 39 L.Ed.2d 630 (1974); Davis v.
Califano, 613 F.2d 957, 964 (D.C.Cir.1979); Wilkins v.
University of Houston, 654 F.2d 388, 398 n.13 (5th Cir.
1981). This circuit has concluded, therefore, that the
relevant labor market includes only those persons
who possess the minimum objective qualifications
necessary for a person to be eligible for a particular
position. Davis v. Califano, 613 F.2d at 964.
In light of these principles, the labor market used
by the plaintiffs for purposes of comparison is overly
broad because the foreign language skills were not
considered in defining the market.’ For example, the
3’ The plaintiffs’ statistics cannot be used to raise an in-
ference of discrimination, as the majority urges, by means of an
assumption that foreign language skills are evenly distributed
among men and women. Such an assumption cannot be
properly made by this court. First, the assumption is based on
the premise that language skills are randomly distributed
among the population. The distribution may not be random,
however, because, as the majority notes, at note 8 supra, many
factors not contained in the record may affect the distribution
of language skills, such as the relative rate of immigration.
Moreover, the majority’s assumption unfairly excuses the
plaintiffs’ failure to produce evidence on the matter. Here, for
Pinan SaaS, fae Sect ead ete i gH re
Ta
evidence indicated that a substantial disparity exists
between the number of women employed by the
Agency as writers and the number of available female
writers. The relevant market, however, is narrower
than the plaintiffs grouping. The district court found
that many writers for the Agency must be fluent in a
second language. The parties agree that this qualifi-
cation is necessary, see Appellants’ Brief, p. 50; a
writer for the Agency must prepare materials for dis-
semination in other countries. The plaintiffs’ sta-
tistical comparison fails to account for the additional
foreign language qualifications; therefore, the data
are too general to establish the existence or cause
of any disparity. Because of this imprecision, the
district court properly refused to infer discrimina-
tions from the plaintiffs’ statistical comparisons.
The plaintiffs failed to establish that their evidence
was entitled to more weight, by showiny that foreign
Janguage skill was not a “minimum objective qualifi-
cation.” Davis v. Califano, 613 F.2d at 964. Simi-
larly, the plaintiffs produced no evidence indicating
that language skills are evenly distributed among
men and women." In short, the plaintiffs have failed to
example, the plaintiffs might have produced evidence regard-
ing the distribution of language skills among the male and
female applicants for positions with the Agency. This appli-
cant flow data would have been sufficient to indicate the dis-
tribution of language skills. The plaintiffs bear the burden of
producing such evidence, Valentino v. United States Postal
Service, 674 F.2d at 68 n.17, 67 n.24 and this court should not
relieve them from meeting this obligation by assuming the con-
dition.
* The plaintiffs have not produced any evidence indicating
which jobs require foreign language skills. Thus, we do not
know which positions require foreign language skills. The
78a
produce evidence which would support an inference of
discrimination. Because the plaintiffs have failed to
produce sufficient evidence, the district court’s con-
clusion that the plaintiffs did not establish a prima
facie case should be affirmed.
consequences of this failure must be borne by the plaintiffs,
because they bear the burden of raising an inference of dis-
crimination, Valentino, 674 F.2d at 68 n.17, and because they
bear the burden of demonstrating the relevance of their
statistical evidence. See Ste. Marie v. Eastern Railway Ass’n.,
650 F.2d 395, 401 n.6 (2nd Cir. 1981). See generally Valentino,
674 F.2d at 71 n.24.
79a
APPENDIX E
UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
Civ. A. No. 77-2019
CAROLEE BRADY HARTMAN, ET AL., PLAINTIFFS
Uv.
CHARLES Z. WICK, DEFENDANT
[Filed: Nov. 16, 1984]
CHARLES R. RICHEY, District Judge.
INTRODUCTION
This case is before the Court on remand by the
Court of Appeals. Although the Court of Appeals af-
firmed this Court’s decision as to the individual dis-
crimination claim of Luba De Medina and a class
claim of discrimination in the promotion of women, it
remanded the case as to (1) a class claim of discrimi-
nation in hiring, (2) a class claim of retaliation for
participation in protected activities, and (3) the indi-
vidual claim of Rose Kobylinski. For the background
of this protracted litigation, see De Medina v.
Reinhardt, 686 F.2d 997, 1000-01 (D.C. Cir. 1982).
With the express agreement of the parties, the Court
has considered these claims on the existing trial re-
cord, post-remand briefs, supplemental memoranda,
and oral argument. After careful consideration, the
80a
Court has decided that it must deny the class claim of
retaliation, but it will grant relief on the class claim
of discrimination in hiring, and on the individual
claim of Rose Kobylinski. This Opinion shall con-
stitute the Court’s findings of fact and conclusions of
law on these claims.
THE COURT FINDS THAT ROSE KOBYLINSKI
WAS DISCRIMINATED AGAINST ON THE BASIS
OF HER SEX
Following trial, this Court denied jurisdiction over
Rose Kobylinski’s claim on the ground that she had
failed to file a discrimination charge with the Equal
Employment Opportunity Commission (“EEOC”) and
had thus failed to exhaust her administrative reme-
dies as required by 42 U.S.C. § 2000e-16. The Circuit
Court reversed this Court’s dismissal, noting that
since the trial, “the Supreme Court has decided that
the requirement of timely filing is akin to a statute of
limitations and is not a jurisdictional prerequisite.
. .’ De Medina v. Reinhardt, 686 F.2d at 1012
(citing Zipes v. Trans World Airlines, 455 U.S. 385,
102 S.Ct. 1127, 71 L.Ed.2d 234 (1982)). The Circuit
Court found the Kobylinski complaint so similar to
the complaint filed by Josefina Martinez, an intevenor
with Ms. Kobylinski, “‘that it can fairly be said that
no conciliatory purpose would be served by filing
separate EEOC charges.” Id. (quoting Foster v.
Gueory, 655 F.2d 1319, 1822 (D.C. Cir. 1981)). Thus,
the Court will reach the merits of Ms. Kobylinski’s
claim.
Ms. Rose Kobylinski, a female naturalized citizen
of the United States born in Poland, began working in
1964 as a foreign language broadcaster in the Polish
Service of the Voice of America, a component of the
Sla
United States Information Agency (“Agency”). In
June, 1977, the Agency posted a vacancy announce-
ment for a GS-12 writer-editor (radio) position in the
Polish Service. At that time Ms. Kobylinski was a
75-11. She held a Bachelor of Arts degree and was
experienced in radio broadcasting, as well as writing
and journalism. The job description in the vacancy
announcement stated that the job included writing
weekly features on American Space and other scien-
tific achievements. At that time, there was one Pol-
ish Service employee, a male, who occasionally wrote
features on American space and other scientific
achievements. Ms. Kobylinski complained to the
personnel office that the Agency had preselected the
male candidate, whom she named, to fill the GS-12
vacancy. Subsequently, the vacancy announcement
was withdrawn, and the reposted announcement made
no reference to writing features on American space
and other scientific achievements. Nevertheless, the
male who Ms. Kobylinski had asserted had been pre-
selected for the position was selected to fill it. Ms.
Kobylinski did not apply for it because, as she
informed officials of the Agency, she felt it would be
futile in light of the Agency’s preselection.
Ms. Kobylinski’s claim is one of disparate treat-
ment. She alleges that the Agency violated Title VII
of the Civil Rights Act, 42 U.S.C. § 2000e-16, by dis-
criminating against her on the basis of sex with re-
gard to job promotions. The gravamen of her com-
plaint is that the Agency preselected a male candidate
to fill the vacant position. If proven, such preselec-
tion, in the form of “tailoring” job qualifications to
those of a particular candidate, violates Title VII.
E.g. Coble v. Hot Springs School District No. 6, 682
82a
F.2d 721, 728 (8th Cir. 1982); Mallard v. Claytor, 471
F.Supp. 16, 22 (D.D.C. 1978).
MS. KOBYLINSKI HAS ESTABLISHED
A PRIMA FACIE CASE
In order to prevail on a disparate treatment claim,
the plaintiff first “has the burden of proving by a pre-
ponderance of the evidence a prima facie case of dis-
crimination.” Texas Dept. of Community Affairs v.
Burdine, 450 U.S. 248, 252-53, 101 S.Ct. 1089, 1093-94,
67 L.Ed.2d 207 (1981). A plaintiff establishes a prima
facie case by showing:
(i) that he belongs to a racial minority; (ii) that he
applied and was qualified for a job for which an
employer was seeking applicants; (iii) that, despite
his qualifications, he was rejected; (iv) that, after
his rejection, the position remained open and the
employer continued to seek applicants from per-
sons of complainant’s qualifications.
McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802,
93 S.Ct. 1817, 1824, 36 L.Ed.2d 668 (1973). Of course,
“(t]he facts necessarily will vary in Title VII cases,
and the specification above of the prima facie proof re-
quired . . . is not necessarily applicable in every
respect in differing factual situations.” Jd. at 802, n.
13, 93 S.Ct. at 1824, n. 13.
Here the record is clear that Ms. Kobylinski did not
apply for the job which she alleges was discrimina-
torily tailored for male candidates. The Supreme
Court has held that a non-applicant may prevail in a
disparate treatment case if she meets “the not always
easy burden of proving that [she] would have applied
for the job had it not been for those [discriminatory]
practices.” International Brotherhood of Teamsters
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v. United States, 431 U.S. 324, 367-68, 97 S.Ct. 1843,
1870-71, 52 L.Ed.2d 396 (1977). In Ms. Kobylinski’s
case, the Court finds that the Agency had, in fact, pre-
selected a male candidate to fill the GS-12 writer-
editor (radio) position in the Polish Service. Ms.
Kobylinski’s application, therefore, would have been
an exercise in futility, despite her qualifications. For
this reason, and because the allegedly “targeted”
male actually filled the vacant position, Ms. Kobylin-
ski has established her prima facie case.
THE AGENCY CANNOT REBUT
MS. KOBYLINSKI’S PRIMA FACIE CASE
Once the plaintiff establishes a prima facie case,
the defendant may rebut by producing evidence that
someone was preferred over the plaintiff for a legiti-
mate, nondiscriminatory reason. Texas Dept. of Com-
munity Affairs, 450 U.S. at 254, 101 S.Ct. at 1094.
The defendant need only raise a genuine issue of fact
as to whether it discriminated against the plaintiff.
Id. at 254-55, 101 S.Ct. at 1094-95. Here the Agency
asserts three arguments in rebuttal. All three argu-
ments must fail.
The Agency claims that because Ms. Kobylinski
had not applied for the GS-12 position, it had no way to
ascertain her interest in the position. This assertion
is flatly contradicted by the evidence. It was Ms.
Kobylinski who complained to the Agency’s personnel
office about the “tailored” nature of the vacancy an-
nouncement. In light of her complaint and her quali-
fications, the Agency will not be heard to claim that it
did not know about Ms. Kobylinski’s interest in the
job.
84a
The Agency also asserts that the “tailored” notice
was inadvertent. Once Ms. Kobylinski alerted the
Agency to the error, the Agency removed the an-
nouncement, and then posted one without the “tai-
lored” qualifications. The response to this assertion
is two-fold. First, it is the preselection that is dis-
criminatory, not the written content of the vacancy
notice. Although the Agency claims that the quali-
fications for the position did not include writing
features on American space and scientific achieve-
ments, even after the posting of the neutral vacancy
announcement, the originally targeted male candidate
was selected to fill the vacancy. Furthermore, the
claim of inadvertence is doubtful. This was not the
only “preselected” vacancy announcement—it hap-
pened on at least two other occasions. In October,
1979, a vacancy occurred in the Polish Service for a
GS-12 writer position. The posted vacancy an-
nouncement required experience in writing scripts
on economics and other specialized topics. At that
time there was only one Polish Service employee with
this type of background, and he received the job. An-
other Polish Service vacancy occurred in 1980, and
the announcement required experience in teaching
English lessons on international radio. Only one em-
ployee, a male, had such experience, and he was se-
lected to fill the position. Because of these other in-
stances of preselection, the Court finds that the
Agency’s preselection in this case was not inadver-
tent.
The Agency also contends that the rejection of Ms.
Kobylinski was not discriminatory because the
position was filled pursuant to its standard personnel
procedures. The applications were initially screened
STS eae ae
85a
by the personnel office, which referred a list of “best
qualified” applications to the selecting official. The
selecting official then made the final choice, choosing
the male candidate from the “best qualified” group.
The Agency contends that this procedure protects
against preselection. Again, the flaw in the Agency’s
reasoning is obvious. The personnel office knew
about Ms. Kobylinski’s interest in the position, but
she was never considered because she did not file an
application. As stated above, such an application
would have been futile. The whole procedure, there-
fore, was not neutral, as the Agency suggests, but
tainted by the preselection. Moreover, a 1976 Civil
Service Commission review of the Agency’s person-
nel actions found that the “promotion actions for
competitive service have not met the standards of the
Federal Merit Promotion Policy.” In particular, the
Commission concluded that, in some cases, there was
evidence “which support[s] that there was preselec-
tion and favoritism exhibited in competitive actions.”
Clearly the Agency cannot rebut the plaintiff's
prima facie case by following its standard proce-
dures.
EVEN ASSUMING THAT THE AGENCY REBUT-
TED MS. KOBYLINSKI’S PRIMAFACIE CASE, THE
AGENCY’S STATED REASONS ARE PRETEXTUAL
Even if the defendant successfully rebuts the
plaintiff's prima facie case, the plaintiff may still
show that the defendant’s stated reasons for the
plaintiff's rejection are mere pretext. McDonnell
Douglas, 411 U.S. at 804, 93 S.Ct. at 1825. The pre-
text is clear in the present record. As noted above,
the Agency preselected male candidates on at least
three occasions. The Civil Service Commission also
86a
concluded that the Agency’s promotion procedures
had not met the appropriate standards. Therefore,
even assuming that the Agency successfully rebutted
Ms. Kobylinski’s prima facie case, Ms. Kobylinski
must prevail because the Agency’s justifications are a
mere pretext for discrimination.
THE COURT FINDS THAT THE AGENCY
DID NOT RETALIATE AGAINST THE CLASS
By Order of April 19, 1978, this Court conditionally
certified this case as a class action. The conditionally
certified class consisted of “all women who have ap-
plied for employment with or are currently employed
by the L..ted States Information Agency and who
have been or continue to be adversely affected by the
discriminatory employment practices of the defen-
dant.”’ At that time, the only discriminatory prac-
tices at issue concerned “promotion and hiring prac-
tices.” Original Complaint 4 1. However, by Order of
October 10, 1978, the Court granted plaintiffs leave to
file an amended supplemental complaint. That com-
plaint, as amended, included a claim that the Agency
“maintained a practice of reprisals against women
who have filed sex discrimination charges against the
Agency.” Supplemental Complaint § 2. Thus, the
action contains a class claim against the Agency
based on its allegedly discriminatory retaliation. Al-
though this Court denied the class claims, including
the retaliation claim, by its October 24, 1979, Find-
ings of Fact and Conclusions of Law, it did not make
any findings regarding the class retaliation claim. In
remanding the case, the Court of Appeals directed
1 The Court, by Order of October 24, 1979, amended the
class to exclude women employees in clerical positions.
\* ca ~ Sek > Ties SS ee ee as tat ESF OP es Oe BALE Ca Re ORD TE OS FFG ES RRR BT a LENT ERIN A ee” teva. @
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87a
this Court to make findings of fact and conclusions of
law concerning this claim. The Court now considers
that claim.
The class retaliation claim is brought under Sec-
tion 704(a) of the Civil Rights Act of 1964, 42 U.S.C. §
2000e-3(a). That section provides, in pertinent part:
It shall be an unlawful employment practice for an
employer to discriminate against any of his em-
ployees . . . because he has opposed any practice
made an unlawful employment practice by this
title, or because he has made a charge, testified,
assisted, or participated in any manner in an in-
vestigation, proceeding, or hearing under this
title.
42 U.S.C. § 2000e-3(a).
This section protects those plaintiffs who filed
EEO charges against the defendant, or who otherwise
“participated” in such a proceeding. It is also clear
that the “opposition” clause of this section protects
those plaintiffs whose opposition to the defendant’s
practice fell short of actually filing EEO charges.
Parker v. Baltimore and Ohio Railroad, 652 F.2d
1012, 1019 (D.C. Cir. 1981). However, because of the
language of the Supplemental Complaint, which lim-
ited the retaliation claim to “women who have filed
sex discrimination charges”, the defendant seeks to
preclude the Court from considering reprisals
against women who did not file charges against the
Agency. The Court rejects this contention because,
ever since April, 1979, when the plaintiffs sought to
enjoin the Agency from retaliating against individu-
als who opposed the Agency’s actions or who “other-
wise exercise[d] their rights under Title VII”, the
Agency has had sufficient notice that the plaintiffs’
SSa
class claim extended to women who opposed, in any
way, the Agency’s discrimination. “Fair notice”,
such as this, is all that is required. Conley v. Gibson,
355 U.S. 41, 48, 78 S.Ct. 99, 108, 2 L.Ed.2d 80 (1957).
The Court also notes that throughout the period for
discovery and the trial in this case, the defendant has
not objected to any evidence on the basis that it was
beyond the scope of the complaint. Thus, the class
retaliation claim is not limited to plaintiffs who filed
EEO charges; it encompasses all plaintiffs who have
opposed the Agency’s discriminatory practices.
BECAUSE THE PLAINTIFFS HAVE FAILED TO
PROVE A PATTERN OR PRACTICE OF REPRISALS,
THEY HAVE NOT ESTABLISHED A PRIMA FACIE
CASE OF CLASS-WIDE RETALIATION
The analytical framework for a retaliation claim
derives from that announced in McDonnell Douglas,
supra. To establish a prima facie case, an individual
plaintiff must show that (1) she engaged in a protected
opposition to unlawful discrimination, (2) her em-
ployer subsequently took an adverse employment ac-
tion, and (3) there was a causal connection between
the protected activity and the adverse action. Burrus
v. United Telephone Company of Kansas, Inc., 683
F.2d 339, 348 (10th Cir.), cert. denied, 459 U.S. 1071,
103 S.Ct. 491, 74 L.Ed.2d 633 (1982); Hickman v. Flood
& Peterson Insurance, 29 Fair Empl. Prac. Cases
1467, 1469 (D.C. Colo. 1982). The present case
involves a class claim of retaliation, however, not an
individual one.
Claims based upon retaliation are “generally per-
sonal in nature.” Pendleton v. Crown, Cork & Seal
Co., 31 Fair Empl.Prac.Cases 1701, 1705 (D. Md. 1980).
See also Colbert v. City of Wichita, 33 Fair Empl.
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Prac.Cases 218, 220 (D. Kan. 1983) (retaliation
usually takes many forms, and thus it is not well-
suited for class treatment). Thus, there are very few
‘vases involving class claims of retaliation such as
this one. Because retaliation manifests itself in many
ways, and often turns on facts peculiar to each case,
the Court holds that, to establish a prima facie case,
the retaliation must have been pursuant to a genera!
practice of the defendant. Cf. General Telephone Co.
of the Southwest v. Falcon, 457 U.S. 147, 159 n. 15,
102 S.Ct. 2364, 2871 n. 15, 72 L.Ed.2d 740 (1982) (reject-
ing class certification for “across-the-board” attacks
against various discriminatory practices, but leaving
open the possibility that a single general practice of
discrimination could justify a class, because “it is
noteworthy that Title VII prohibits discriminatory
employment practices, not an abstract policy of dis-
crimination.”) (emphasis in original).” Therefore, in
the analytical framework mentioned above, step (2)
must be modified in class actions to reflect the re-
quirement that the adverse actions must have been
2 The Court realizes that Falcon did not rule on the merits
of the claim, but denied class certification. The Court also
recognizes that, under Rule 23(c), Fed. R. Civ.P., it could even
now deny certification. Cf. Larionoff v. United States, 533
F.2d 1167, 1188 (D.C. Cir. 1976), aff’d 481 U.S. 864, 97 S.Ct.
2150, 53 L.Ed.2d 48 (1977); Jimenez v. Weinberger, 523 F.2d 689,
697 (7th Cir. 1975), cert. denied sub nom., Mathews v. Jimenez,
427 U.S. 912, 96 S.Ct. 3200, 49 L.Ed.2d 1204 (1976) (both cases
ruling on class certification when also deciding the case on the
merits). However, it has been over five years since this case
was first filed, and the Court considers it best to finally reach
the merits of this retaliation claim. This also seems to be what
the Court of Appeals had in mind when it remanded this claim
for findings of fact and conclusions of law. 686 F.2d at 1011.
90a
taken pursuant to a general practice or policy of the
defendant.
In presenting this class retaliation claim against
the Agency, the plaintiffs chiefly rely upon deposition
testimony, and related exhibits, of six female Agency
employees. Plaintiffs’ Post-Remand Brief on Class
Retaliation Claims at 1. As explained below, this
evidence is insufficient to establish a general practice
of reprisals taken by the Agency, and thus the plain-
tiffs have failed to present a prima facie case of
retaliation.
Ms. Barbara Callihan testified for the plaintiffs.
She was employed in the Current Affairs Division of
the Voice of America as a researcher/writer. She
complained to her supervisor, Mr. Hanu, that she felt
that she was being asked to do secretarial-type duties.
After she compiained in writing about typing duties,
Mr. Hanu wrote her a note stating, “As I told you
oefore, no one refuses any type work in this division.
If you are still unclear about your duties in this
division, please consult your job description which, I
am sure, contains the clause ‘plus any other type
work assigned,’ etc. And if you are still unsatisfied, I
will have to accept your resignation.” (Callihan Exhi-
bit # 1).
However, Ms. Callihan also testified that Mr.
Hanu’s temper was not aimed solely at women. She
stated, “if you are asking me if he is picking on wo-
men, I couldn’t tell you. I don’t think he does.” (Cal-
lihan Deposition, 108). She further stated, in re-
sponse to a question about whether his disagreements
with employees was limited to women, “[mJan or
woman, black or white, it doesn’t make a bit of
difference if he is upset with you, but look out.” 7d.
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Finally, Ms. Callihan testified that she knew of no one
who was threatened with reprisals for their participa-
tion in the suit. /d. at 115.
Ms. Michala de Souza was a foreign language
broadcaster in the Czechoslovakian Service who felt
that she was assigned secretarial duties. She once
complained to her supervisors, who responded that,
because she was an alien, she should not com-
plaint[sic]. (de Souza Deposition, 26-27, 58). Although
she was frightened, id. at 34, after speaking with an
Agency personnel officer, the situation was resolved
to her satisfaction. Jd. at 61. In fact, by the time of
her deposition, she had recently been promoted. Jd. at
59.
The plaintiffs also rely upon the deposition testi-
mony of Anita K. Tong, who was employed in the
Chinese Service as a producer. She complained to a
union representative that she was required to per-
form greater services for less pay than males in the
same job. (Tong Deposition, 43-44). She testified that
she was severely criticized by her supervisors after-
wards. Id. at 45-46. And, after her deposition, one of
these supervisors signed an unfavorable performance
evaluation for Ms. Tong. (Tr. 5/31/79, 46-48).
Ms. Deborah Showalter also testified. Although
she was a college graduate, she applied and was hired
as a clerk/typist. (Showalter Deposition, 6). She re-
ceived some professional duties as a writer even
though she remained a clerk/typist. Jd. at 25. She
felt as though she deserved a promotion, and she went
over her supervisors’ heads to speak to the Deputy
Administrator concerning a promotion. Jd. at 26-27.
This upset her supervisors, one of whom was Mr.
Hanu. Ms. Showalter sought the help of a union
92a
representative to obtain a promotion. Jd. at 46-60.
Mr. Hanu had apparently called her a troublemaker,
and at a staff meeting, he inaccurately stated that she
had filed a class action against him. /d. at 71, 73-75.
After realizing that his information was incorrect,
Mr. Hanu publicly retracted the statement and
personally apologized to Ms. Showalter. Jd. at 88. As
previously noted, some plaintiffs testified about Mr.
Hanu’s temper, and that his disagreements are not
limited to women. (Callihan Deposition at 108).
Ms. Etel Berger, a GS-9 foreign language broad-
caster in the Brazilian Branch of Voice of America,
testified as to Agency reprisals. She felt that she was
performing the same duties as others at GS-11 or GS-
12 levels. (Berger Exhibit # 8). She felt as though
she would not receive a promotion, so she wrote a
letter to the Director of Personnel announcing her
intention to leave. (Berger Exhibit #9). Her supervi-
sors then called her in for a meeting to discuss her
problems. (Berger Deposition, 100). One of her su-
pervisors, Ms. Lucilie DePalma, did not like the way
her voice sounded on the air, and suggested that she
take some lessons on how to improve it. Jd. at 102.
Ms. DePalma also stated that Ms. Berger did not have
enough experience to handle a particular show (“In-
forme”) because she had not worked on weekends,
where the broadcast format is less structured and
less supervised. Jd. Ms. Berger said that she “wel-
come[d] the opportunity to” try the weekend work,
and she was thereafter assigned such work. Id. at
102, 107. After she performed a particular Saturday
show, the senior producer in the Brazilian Depart-
ment applauded and congratulated her. Jd. at 107-08.
Also, after learning of Ms. Berger’s expressed inten-
3
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98a
tion to leave the Agency, the assistant to the Direc-
tor of Voice of America had personally called her to
express her appreciation for her work and to assure
her that she would get a grade raise. /d. at 148.
Ms. Rose Kobylinski, the remaining individual
plaintiff, testified that some women expressed fear for
her because she was participating in the suit. (Tr.
5/30/79, 158). The plaintiffs have not demonstrated
the grounds for this expressed fear. Nor is there any
evidence that Ms. Kobylinski suffered reprisals for
her participation in this case.
The plaintiff’s evidence does not establish the re-
quisite policy or practice of discrimination. The
plaintiffs chiefly rely upon the testimony of only six
witnesses. Some (but probably not all) of these wit-
nesses may have been able to substantiate individual
claims of retaliation. However, there is no evidence of
a general policy of retaliation in the Agency. The
plaintiffs have presented no evidence linking these
incidents. The alleged reprisals took various forms
and came from various officials. In short, there is
insufficient evidence to overturn this Court’s October
24, 1979, Finding of Fact that there is an “absence of
any pattern or practice of discrimination based on sex
at the Agency at all relevant periods in this litiga-
tion.” Medina v. Reinhardt, Nos. 77-0360, 77-2019,
and 78-0762, slip op. at 11 (D.D.C. Oct. 24, 1979) (here-
after “slip op.”). Therefore, the plaintiffs have failed
to establish a prima facie case of class-wide discrimi-
nation in the form of retaliation.
94a
THE COURT FINDS THAT THE AGENCY
DISCRIMINATED AGAINST WOMEN IN HIRING
During the trial of this case the Court heard con-
siderable testimony from statistical experts. Each
side presented an expert who subdivided the Agency’s
workforce into occupational categories and sought to
translate (“cross-map”) each Agency category into a
Census category. Thus, the experts agreed on the
basic methodology involved in defining the relevant
labor market. However, in some instances, they dis-
agreed as to which specific Census categories they
would compare to the Agency’s occupational catego-
ries. In its October 24, 1979 Findings of Fact and
Conclusions of Law, this Court held that the cross-
mapping presented by both sides was insufficient to
gain meaningful insight into whether the Agency’s
hiring practices were discriminatory:
The Court finds that both plaintiffs’ and defen-
dant’s experts have failed to produce sufficiently
precise labor-pool-availability figures whether na-
tionally or locally. Due to the inherent unreliabil-
ity of broad and general cross-mapping with a
specialized variety of highly-skilled positions at
the Agency as compared to the available Census
and BLS [Bureau of Labor Statistics] job catego-
ries, the “cross-mapping” done here is of little or
no value in the case at bar.
The Court concluded that the plaintiff class had
failed to establish a prima facie case of discrimina-
tion under 42 U.S.C. § 2000e et seq.
The Court of Appeals reversed and remanded this
part of the Court’s decision. After reviewing the Su-
preme Court’s holdings in International Brotherhood
aba Sot plied Geant 4 bees
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95a
of Teamsters v. United States, 431 U.S. 324, 97 S.Ct.
1843, 52 L.Ed.2d 396 (1977), and Hazelwood School
listrict v. United States, 433 U.S. 299, 97 S.Ct. 2736,
53 L.Ed.2d 768 (1977), the Court stated that this Court
required too much precision in the use of statistics:
The standard of precision the district court de-
manded, far from being mandated by these cases, is
unprecedented and unjustifiable, insofar as it re-
sults in a total rejection of the Census data as a
basis for statistical comparisons to establish a
prima facie case.
686 F.2d at 1005.
Noting that the Census has fewer occupational
categories than the Civil Service system, the Court
of Appeals stated:
We are satisfied that comparing Agency occupa-
tional categories to the broader Census categories
is appropriate because all types of jobs the Census
includes within any given Census occupational
categories are sub-specialties of that occupation;
thus, such aggregations retain “generally similar
job skills”
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