# Appendix — Duffey v. Hartman > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386013_0476%3A2 ## Record - **Collection:** Supreme Court brief - **Document type:** Appendix - **Published:** January 1, 1997 - **Citation:** 520 U.S. 1240 ## Text Supreme Court, U.>. rii hw 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 i IO IO 0 OE tt te Re he teins. narnia et nas wabie . TABLE OF CONTENTS Page Appendix A (court of appeals’ opinion, July 19, POUR caviitinsittcisneemseashititdeissminnieainneitiraiiienninmiinniiete la 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, ROIIND scbideutrinicenihisseniiskeeapecnipunvvceiscnibieinienipdobalasnieapiatiions 35a 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. eee aa lt tT ee NS Se a a eR ERTS etc iE NO pC oS olde ah Snes 3a 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 Se Te as oR a Oe had OR $ TTD 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.) 1 ER 6! it Sneha casei ELA ake Rant it eh DE ein 5 i RY 3 “e 69a % 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 ee jlo 7 a $ & 4 i 3 Tla 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 CE He ae eo 5 ii F M 4 biel ater ee toa a, a ‘ + PADS on UOC SRT Rit KONI Tek eA Ra ir Lo) al ad Sele Bano secintybiiame ae ait ; t 4 4 : precy. Ob naan DAE Ath FS NAR iin le, 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 ) 4 : % 7 = 3 2 k 4 ¢ $ = ¥ | 3 & 4 “a i rad Ee el 2h 2 “e e 4 83a 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. @ LDP POLE EMO RE TE DE BS Es hah EN eS EO PDR et RAIN Ce ~ 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. Co OE PDB ONS SR Dd ra A ‘ a4 4 55] 3 3 “¢ ; Bd ie = % * Sad 4 a - 4 , PO a arene ee Cee Te | — a a een Gils we eet Cw nbs 89a 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. 4 a ‘ : bs a % 4 , § 4 BD SESE LBD LESLIE DS BOLE Bs CRP Bit 9la 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 : % cid : Ls 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 ee te ee eee ok tea hy Ur ee Meigen iN Wee? ot ce See is oe rs 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” in common. Valentino v. USPS, 674 F.2d [56] at 68. 686 F.2d at 1006. Thus, the Court will turn to the merits of the class-wide hiring claim, considering the parties’ statistics. In light of the Court of Appeals’ decision, this Court must reconsider its previous determination that there was insufficient evidence of a pattern or practice of discrimination at the Agency. (slip op. at 11). As the following analysis demonstrates, after careful scrutiny, the Court has also reconsidered its earlier determination that the conclusions of 96a Dr. Wolfbein, the defendant’s expert, are entitled to more weight than those of Dr. Rosenblum, the plain- tiff’s expert. Jd. at 7. Upon reconsideration, the Court finds that, in six major occupational categories, which constitute approximately fifty percent of the Agency’s work force, the Agency has discriminated against women. BECAUSE OF GROSS STATISTICAL DISPARITIES, THE PLAINTIFFS HAVE ESTABLISHED A PRIMA FACIE CASE OF DISCRIMINATION IN HIRING In Hazelwood School District v. United States, the Supreme Court stated: Where gross statistical disparities can be shown, they alone may in proper case constitute prima facie proof of a pattern or practice of discrimina- tion. 433 U.S. at 307-08, 97 S.Ct. at 2741-42. Thus, plaintiffs may establish a prima facie case by demonstrating that statistically significant disparities exist be- tween the proportion of female Agency employees by job category and their availability in the relevant labor market. The plaintiffs expert, Dr. Rosenblum, performed a relevant labor market analysis of the Agency’s work force to assess its utilization of women in comparison with the availability of women in the relevant labor market. Dr. Rosenblum obtained a list of the fourteen major occupational titles at the Agency. These occupational categories represented over 75% of the Agency’s workforce. Of those fourteen categories, Dr. Rosenblum eliminated four which were primarily clerical in function. Women who had sought employ- ment with the Agency in these occupations are no 97a longer class members since this Court modified the class to exclude women who applied for or were in clerical positions. (Order of October 24, 1979). Dr. Rosenblum then cross-mapped the Agency occupa- tions with occupational categories used by the Bu- reau of Census. After completing the cross-mapping, Dr. Rosen- blum compared the proportion of women employed by the Agency in each of these ten categories with the proportion of women available in what he considered to be the most appropriate Census category, i.e., the relevant labor market. Dr. Rosenblum examined the Agency’s workforce as December 31, 1978. He deter- mined that the disparities were not substantial in four of the ten major job categories. These four categories constituted about thirteen percent of the Agency’s total employment. In six major categories, Dr. Rosenblum found statistically significant disparities between the Agency’s utilization of women and the availability of women in the appropriate Census category. These six categories were Electronic Technician, For- eign Language Broadcaster, Production Specialist, Writer/Editor, Foreign Information Specialist, and Radio Broadcast Technician. These six categories constitute about 50% of the Agency’s total employ- ment. The following table summarizes Dr. Rosen- blum’s standard deviation analysis concerning the utilization of women in these six categories: 98a ILIZAT WwW AGENCY Job Title Employed Expected Difference Significance Electronic Technician 1 10 i) 2.97 $.D. Foreign Language Broadcaster 60 114 54 10.23 $.D. Production Specialist 28 43 15 2.82 $.D. Writer, Editor 94 155 61 6.45 §.D. Foreign Information Specialist 172 388 216 13.56 $.D. Radio Broadcast Technician 5 64 59 14.77 $.D. As Dr. Rosenblum testified, customary scientific practice recognizes that where the number of standard deviations of the difference exceeds 1.65, the disparity is unlikely to have occurred by chance.’ (Tr. 5/29/79, 124-125). The underutilization of women was significant in each of these six categories, where the standard deviations ranged from 2.82 to 14.77, in each case well beyond the threshold for statistical signifi- cance. The defendant at this point attacks plaintiffs’ sta- tistics in two major respects. The defendant ques- tioned Dr. Rosenblum’s focus only on the larger 3 In addition to the scientific community, the Supreme Court has also approved the use of standard deviation analysis. See Hazelwood, 433 U.S. at 311, n. 17, 97 S.Ct. at 2743 Cast- aneda v. Partida, 430 U.S. 482, 496-97, n. 17, 97 S.Ct. 1272, 1281, n. 17, 51 L.Ed.2d 498 (1977). BORER BR RENARD Ee VLAN MES SR TIS BELIEF Sette TR OWS Geer Let Siting EPR WNT BG POS aM iA EL alle Bot ore Tits tt SRC RO AN ia sf inant Rpt ea DSA ae SS Sak aA AP ae A attics Saas Oe hd. 99a Agency job categories rather than on each of the Agency’s occupations. The defendant also disputes the validity of Dr. Rosenblum’s cross-mapping to the Census categories in some occupations. As shown be- low, neither of these attacks defeats plaintiffs’ prima facie case. The defendant asserts that Dr. Rosenblum’s analy- sis is flawed because it focuses on only about fifty percent of the Agency’s total employment. First, it must be noted that the class action no longer con- cerns those Agency employees in clerical positions, so Dr. Rosenblum properly excluded those employees from his analysis. (Slip op. of October 24, 1979, p. 7). Dr. Rosenblum also focused only on the major occupa- tional categories at the Agency, those contained in the Agency’s affirmative action plan. (Tr. 5/29/79, 146). Dr. Rosenblum was then left with ten major categories to analyze, which comprised sixty-three percent of the Agency’s total work force. /d. at 101. Of these ten categories, Dr. Rosenblum found signifi- eant underutilization of women in the six explained above. These six categories constituted slightly over fifty percent of the Agency’s work force. /d. at 147. To the extent that the defendant quarrels with Dr. Rosenblum’s exclusion from analysis of numerically small categories, the defendant’s argument misses the mark. Ever since Mayor of Philadelphia v. Edu- cational Equality League, 415 U.S. 605, 611, 94 S.Ct. 1323, 1328, 39 L.Ed.2d 630 (1974), it has been clear that unreliable statistics based on small sample sizes are discouraged. See also Valentino v. United States Postal Service, 674 F.2d 56, 72 (D.C.Cir.1982) (num- bers may be too small to properly conduct a statistical 100a analysis, but “small numbers are not per se useless, especially if the disparity shown is egregious.”) Moreover, a glance at some of the smaller occupa- tional categories serves to confirm, rather than weaken, plaintiffs’ prima facie case. Indeed, the dis- parities seem to reach the “egregious” level men- tioned in Valentino, supra. The following table, based on Defendant’s Exhibit # 6, sets forth twenty- one white collar occupational categories in which the Agency employed no females as of December 31, 1978: OCCUPATIONAL CATEGORY TOTAL MALES FEMALES Guard 12 12 0 History 1 1 0) Labor Relations 2 2 0 Office Service Management 1 1 0 Financial Management 1 1 0 General Engineer 2 2 0 Engineer Technician 11 11 0 Civil Engineer 4 4 0 Mechanical Engineer 11 11 0 Electronic Engineer 16 16 0 Photography 14 14 0 Tech. Writer & Editor 1 1 0 Gen. Facilities & Equipment 2 2 0 Facility Management 4 4 0 Printing Management 15 15 0 Equipment Specialist 6 6 0 Training & Instruction 1 1 0 General Supply 2 2 0 Supply Progress Management 2 2 0 Distribution Facilities 2 2 0 Traffic Management 5 5 0 115 115 0 4 a Bs 3B ree sp | $ Beg ES aor cGy. 8 i ae s a 3 3 aA i) Pia “BS a ; 101la The same exhibit, (Def. #6), also demonstrates that the Agency employed no women in eighteen of the Agency’s twenty-three blue collar categories, where a total of sixty-two men were employed. However, be- cause each of these categories contained sixteen men or fewer, these categories were insufficient in size to determine whether statistically significant dispari- ties existed. Thus, Dr. Rosenblum was justified in eliminating them from his relevant labor market analysis. In summary, Dr. Rosenblum did not perform a rele- vant labor market analysis in every Agency job category. Small categories, which could not support a meaningful statistical analysis, were not analyzed. Even in many of those categories, however, it appears that women were underutilized. Although Dr. Rosen- blum properly refused to draw conclusions from these categories, Mayor of Philadelphia, 415 U.S. at 611, 94 S.Ct. at 1828, the Agency can find little comfort in his failure to analyze them. The Agency also challenges Dr. Rosenblum’s cross-mapping in some of the six particular catego- ries where Dr. Rosenblum found significant under- utilization by women. Initially, it is noted that the plaintiffs and defendants agreed on which Census category to use for the Agency category of Electronic Technician. In two other Agency categories, the defendant’s choice for the proper Census category still leads to statistically significant disparities.* 4 Indeed, for the Agency category of Foreign Information Specialist, the plaintiffs chose the Census category of Writers and Artists while the defendant compared it to the Census cate- gory of Editors and Reporters. Had Dr. Rosenblum used the defendant’s category for comparison, because the availability of 102a Concerning the cross-mapping of the _ other categories, Dr. Rosenblum reviewed the job descriptions contained within the Civil Service Commission’s Qualifications Handbook, as well as additional material published by the Agency, to compare them to “the most compatible Census occupation{s].” (Tr. 5/29/79, 65-66). While the experts agreed as to this methodology, they disagreed as to the categories in some instances. The Court, however, finds that this is an area where reasonable experts could disagree. In short, at this prima facie ease stage, the defendant’s attack on Dr. Rosenblum’s particular instances of cross-mapping would have the Court impose the “inappropriately high standard of precision” that has been rejected by the Court of Appeals. 686 F.2d at 1007. Thus, because of the persuasive statistical dispari- ties presented, the plaintiffs have established a prima facie case of sex discrimination in hiring for the six major occupational categories. See Hazelwood, 433 U.S. at 307-08, 97 S.Ct. at 2741-42 (“where gross sta- tistical disparities can be shown, they alone may in a proper case constitute prima facie proof of a pattern or practice of discrimination.”) THE DEFENDANT’S STATISTICS ARE INSUFFI- CIENT TO REBUT THE PLAINTIFFS’ PRIMA FACIE CASE Once the plaintiffs have established through sta- tistical evidence a pattern or practice of sex discrimi- nation, the burden shifts to the employer to show that women there exceeded that in the Writers and Artists cate- gory, the size of the disparity would have increased. (Tr. 5/29/79, 161-162). 108a the plaintiffs’ “proof is either inaccurate or insignifi- cant.” Teamsters, 431 U.S. at 360, 97 S.Ct. at 1867. Here the Agency attempts to rebut the plaintiffs’ prima facie case through the labor market analysis of its own expert, Dr. Seymour Wolfbein. Dr. Wolfbein cross-mapped Agency categories to what he considered to be the most appropriate Census category, as did Dr. Rosenblum. Although the experts agreed as to methodology, their approaches differed in certain respects. The defendant, through Dr. Wolf- bein, sets forth four main attacks on Dr. Rosenblum’s analysis. Dr. Wolfbein initially asserts that Dr. Rosenblum’s analysis was flawed because -he only focused on approximately fifty percent of the Agency work force. Second, Dr. Wolfbein contends that Dr. Rosenblum’s analysis only provided a “snapshot” of the Agency’s work force, and did not consider the Agency’s hiring statistics over a period of time. Third, Dr. Wolfbein disagrees with Dr. Rosenblum’s judgment of which Census categories were appropri- ate in five of the six major categories where Dr. Rosenblum found significant underutilization of wo- men. Fourth, Dr. Wolfbein asserts that Dr. Rosen- blum should not have relied upon the 1978 Current Population Survey for employment data. However, none of these arguments rebuts the prima facie case established by the plaintiffs. As previously explained, swpra pp. 20-23, Dr. Rosenblum did not simply examine only one half of the Agency’s work force. He started with the nu- merically large categories, covering about seventy- five percent of the work force, then he properly elimi- nated those in clerical positions. After cross-mapping the remaining ten categories, he found statistically 104a significant underutilization of women in six of those categories. It is these six categories which comprise about fifty percent of the Agency’s total employment. In contrast to Dr. Rosenblum’s careful focus only on numerically large categories, Dr. Wolfbein per- formed a relevant market analysis for virtually all of the Agency’s positions, without regard to the size of the categories. Because he failed to take into account the small numerical size of many categories, however, Dr. Wolfbein’s analysis produced some extremely distorted results. For example, using Dr. Wolfbein’s cross-mappings and calculations for 1978 figures, Dr. Wolfbein concluded that in the Agency’s professional occupations, the proportion of women employed by the Agency exceeded their availability in eight of these occupations, while the proportion of women was below their availability in the remaining eight occupations. Thus, Dr. Wolfbein asserts that this presents a bal- anced employment of women by the Agency. Upon closer examination of the actual number of employees involved, however, the distortion of these figures becomes apparent. For example, in some of the categories where Dr. Wolfbein found the Agency to have employed women in proportions exceeding the market availability, the Agency employed the follow- ing numbers of employees: 105a OCCUPATIONAL CATEGORY TOTAL MALES FEMALES Lawyer 10 8 2 Public Relations 12 6 6 Writer (Translator) 4 1 3 Research Workers n.e.c. ° 20 10 10 The size of these categories stands in stark con- trast to two of the professional occupations where Dr. Wolfbein found a proportionately low number of wo- men employees: OCCUPATIONAL CATEGORY TOTAL MALES FEMALES Editors & Reporters 1,506 1,224 282 Technician 276 270 6 These numbers alone clearly demonstrate that Dr. Wolfbein’s attack on Dr. Rosenblum’s focus on large categories cannot be sustained. It is apparent that Dr. Rosenblum properly rejected categories with few em- ployees. See Mayor of Philadelphia, 415 U.S. at 611, 94 S.Ct. at 1328. Dr. Wolfbein’s hiring analysis suffers from the same problem as his utilization analysis: Dr. Wolf- bein did not take into account the disproportionate results that numerically small categories would pro- duce. In four of the nine professional job categories where Dr. Wolfbein found that the agency hired, from 1973 to 1978, more women proportionately than were available in the relevant labor market, the actual numbers are insignificant: 5 The abbreviation “n.e.c.” stands for “not elsewhere classi- £2 ” fied. 106a FULL TIME HIRES BY OCCUPATION, 1973-1978 OCCUPATIONAL CATEGORY TOTAL MALES FEMALES Lawyer 12 11 1 Public Relations 4 1 3 Writer (Translator) 3 2 1 Research Workers, n.e.c. 7 3 4 In contrast to these small numbers are two of the seven professional categories where Dr. Wolfbein found a disproportionately low number of women hires: FULL TIME HIRES BY OCCUPATION, 1973-1978 Editors & Reporters 436 299 137 Technician 103 103 0 In light of these disproportionate results, Dr. Wolf- bein’s hiring figures obviously cannot rebut plaintiffs’ prima facie case. Dr. Wolfbein simply has failed to show that Dr. Rosenblum’s focus on the statistically large categories is “inaccurate or insignificant.” See Teamsters, 431 U.S. at 360, 97 S.Ct. at 1867. Dr. Wolfbein also attacks Dr. Rosenblum’s use of the 1978 Current Population Survey data. Dr. Wolf- bein himself used data from the 1970 Decennial Cen- sus. Although the Current Population Survey used a smaller sample than did the Census, Dr. Wolfbein has failed to show that the figures are unreliable. More- over, the 1978 figures are, of course, more recent than the 1970 figures. Thus, the Court finds that the 107a choice of the more recent 1978 Current Population Survey statistics was a reasonable one. Dr. Wolfbein’s final rebuttal argument attacks Dr. Rosenblum’s cross-mapping in four of the six relevant categories. When each category is individually ana- lyzed, however, one can see that Dr. Rosenblum care- fully selected an appropriate Census category for the cross-mapping. For the Agency category of Radio Broadcast Tech- nician, Dr. Rosenblum chose tie Census Radio Operator category. Dr. Wolfbein disagreed, choosing the Census Electronic Technician category. How- ever, even using the cross-mapping chosen by Dr. Wolfbein, both experts agreed that the Agency under- utilized women in the Radio Broadcast Technician category to a statistically significant degree. (Tr. 5/29/79, 160-61; Tr. 6/1/79, 99). Dr. Rosenblum cross-mapped the Agency category of Foreign Information Specialist with the Census category of Writers and Artists not elsewhere classi- fied. Dr. Wolfbein compared it to the Census category of Editors and Reporters. However, the availability of women in the Editors and Reporters category ex- ceeded the availability of women in the category of Writers and Artists not elsewhere classified. Thus, had Dr. Rosenblum accepted Dr. Wolfbein’s cross- mapping in this category, the disparity found by Dr. Rosenblum would have increased. Dr. Rosenblum compared the number of women em- ployed as Foreign Language Broadcasters with the availability of women in the Census category of Edi- tors and Reporters. Dr. Wolfbein chose the Census category of Radio Announcers. However, the record 108a demonstrates that Dr. Rosenblum’s choice was well- reasoned. He considered the duties required in that Agency position, and concluded that the Census Edi- tors and Reporters category was the most appropri- ate “because of the emphasis on the writing and the preparation of the material.” (Tr. 5/29/79, 99). This conclusion is supported by the testimonial evidence of Agency employees in the Foreign Language Broad- caster category. Ms. Michala de Souza testified that her Broadcaster job involved duties such as “working on the programming, translating, writing, narrating, OGitiM, . ss ” (de Souza Deposition, 22). Because of the consideration of the duties of a Foreign Language Broadcaster, Dr. Rosenblum’s choice of Editors and Reporters was an appropriate one. Dr. Wolfbein has failed to show that his choice was more appropriate. Dr. Rosenblum cross-mapped Audio Visual Produc- tion Specialists with Writers and Artists, while Dr. Wolfbein compared them to the Census managerial category. Ms. Luba Medina testified that, as a pro- ducer, she was required to select and edit musical inserts, produce live radio shows, coach announcers, and control the timing of shows. (Tr. 12/15/80, 41-49). She also testified that the nonprofessional duties were simply “incidental”, and “not the essence of {her} job.” Jd. at 44. This uncontradicted testimony demonstrates that the skills required of an Agency Audio Visual Specialist were those of a professional artist rather than a manager. Thus, Dr. Rosenblum properly chose the Writers and Artists category for this cross-mapping. In sum, the defendant’s rebuttal attack on Dr. Rosenblum’s statistical analysis fails on all fronts. Dr. Rosenbium considered all statistically meaning- 109a ful categories at the Agency, and found significant disparities in six major categories. Although he analyzed the Agency’s work force at a specific point in time, the defendant’s hiring statistics are clearly insufficient to rebut the plaintiffs’ prima facie case. Dr. Rosenblum’s use of the 1978 Current Population Survey figures was justified because those statis- tics were much more current than the 1970 Census figures used by Dr. Wolfbein. Finally, Dr. Rosen- blum carefully and appropriately cross-mapped each Agency category he considered. Therefore, the plain- tiffs have presented and unrebutted prima facie case of sex discrimination at the Agency. This discrimina- tion was particularly meaningful in six major Agency occupations. The Court finds that the plaintiffs are entitled to judgment in these six categories, which constitute approximately fifty percent of the Agency’s employment. See United States v. County of Fairfax, 25 Fair Empl.Prac.Cases 662, 666 (E.D. Va.19 [Text truncated at 120,000 characters. The full text is on the page linked above.] --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386013_0476%3A2. Public record. Not legal advice.