Petition for Writ of Certiorari — Munoz v. Orr

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__DFFICE OF Tie Cicmm

IN THE

SUPREME COURT OF THE UNITED STATES

MANUEL MUNOZ, JR. and JESUS G. MUNOZ,

Petitioners,

VERNE ORR, et al.,

Respondents,

On PETITION For Writ OF CERTIORARI

To Tue UNITED STATES COURT OF APPEALS

For Tue Firtu Circuit

PETITION FOR WRIT OF CERTIORARI

Larry R. DAvVEs *

DAVES & ASSOCIATES

405 W. MAGNOLIA AVENUE

P.O. Box 120126

SAN ANTONIO, TX 78212

(210) 733-3299

Counsel for Petitioners

* Counsel of Record

BECKER GALLAGHER LEGAL PUBLISHING, INC.,

CINCINNATI, OHIO 800-890-5001

QUESTIONS PRESENTED

l. Whether 2742 members of the certified class of

Kelly A.F.B. Hispanic male employees have been denied

fundamental fairness by the granting of summary judgment in

favor of the Air Force based upon a statistical analysis which

was contradicted by other statistical evidence produced by

defendant’s other experts?

2. Whether the absence of contemporaneous

objection to adverse pretrial and discovery orders constitutes

a waiver of review and/or limits appellate review to plain

error review?

3. Whether the Court in determining a Rule 56

summary judgment motion must consider only evidence which

was presented in legally admissible form?

4. Whether the Court below invaded the province

of the trier of fact by excluding plaintiffs’ statistical analysis?

PARTIES TO THE PROCEEDING

Petitioners

Petitioners are Manuel and Jesus Munoz individually and on

behalf of the class of similarly situated Hispanic male

employees of Kelly. Air Force Base unlawfully denied

promotion opportunities from 1980 through 1992. Petitioners

are individuals with no corporate affiliations.

Respondents

Respondent is the Secretary of the U.S. Air Force, F. Whitten

Peters. :

TABLE OF CONTENTS

QUESTIONS PRESENTED ...................

PARTIES TO THE PROCEEDINGS ............ ii

THO CONTENTS... oe cs iii

TAME OF AUTHORITIES .................. vi

Se dg. cee es. 1

NN ee eek. 1

CONSTITUTION AND STATUTORY

PROVISIONS INVOLVED .............. I

STATEMENT OF THECASE ......... Doers 2

REASONS FOR GRANTING WRIT............. 6

THE DECISION OF THE COURT OF

APPEALS CONFLICTS WITH DECISIONS

Je SONS RPE CAPE eee a 6

A. The Courts Below Did Not Accord

Plaintiffs The Benefit Of Reasonable

Inferences In Violation Of Prior

Supreme Court Precedent........... 6

B. The Magistrate’s Restrictions on

Discovery Violated Hickman v. Taylor

ill

1. The Magistrate Entered Critical

Discovery Orders and Trial

Management Orders Which

Substantially Prejudiced

Plaintiffs and the Class. ....... 10

hs The Doctrine Of Waiver Is

Inconsistent With The Principle

of Liberal Discovery Required

By Modern Federal Rules...... 14

C. The Court’s Failure to Consider

Plaintiff's Lay Evidence Violate Rule

56 By Requiring Plaintiffs Not Merely

to Generate a Genuine Issue of

Material Fact But to Establish Their

Ce a ee os Rhee eS ERG 19

D. The Court’s Rejection of Plaintiff's

APPENDIX

Statistical Analysis violates Daubert... . 21

CA hw hae hee oleae re 23

Appendix A

Court of Appeals Opinion, 1/5/00 .......... la

Appendix B

District Court Order Following Remand,

REAR 4.6 eb ee CENSORS 27a

Appendix C

Court of Appeals Order, 10/7/98 ......... 49a

se atl i ita te BO ieee Mal alas

ee ee ae ee

Appendix D

District Court Order, 7/28/97

Appendix E

Validation Analysis of Promotions at Kelly

APA ER 2k OSs ee

TABLE OF AUTHORITIES

CASES:

Akin v. Pafec Ltd.,

991 F.2d 1550 (Lith Cir. 1995) ........4.. 17

Anderson v. Liberty Lobby, inc.,

477 U.S. 242, 106 S.Ct. 2502 (1986)... ... 7, 10

Celotex Corp. v. Cattrett,

477 U.S. 317, 106 S. Ct. 2548 (1986) .. 7, 10, 19

Coughlin v. Lee,

946 F.26 1152 GU Ce. T9886 5s en 12

Daubert v. Merrell Dow Pharmaceuticals,

SOD U.S. Fre tee + sha ee [3, 24. 22. a

Henderson v. Carlson,

812 F.2d 874 (3rd Cir. 1987)

cert. denied 484 U.S. 837 (1987) .......... 15

Herring v. New York,

422 U.S. 553 GQIIS) «ok ahaa een ee 14

Hickman vy. Taylor,

329 U.S. 65 GEN 2. «sae ee eee 10, 19

Kent v. Johnson,

821 F.2d 1220 (Gah Ct. 1982) 64s eke 17

Kumho Tire Co., Ltd. v. Carmichael,

$26 U.S. 237 (15S) s 6 a Ss 6 ee eee 3. 2h ae

McCarthy v. Manson,

714 F.26 234 G6 Cer. 1965)... oases

McCullock v. H.B. Fuller Co.,

61 F.3d 1038 (2d Cir. 1995) ..........

McDonnell Douglas Corp. v. Green,

Ch gS Se Of). Fr re ea

Merritt v. International Bro. of Boilerworkers,

649 F.2d 1013 (Sth Cir. 1981) .........

Mitcheil v. Rees,

834 F368 S7i Come Ce. 1987) 2 wees

Munoz v. Orr,

200 F.3d 291 (Sth Cir. 2000) ..........

Neuman v. Rivers,

vsbe Bis? —¢& Ao. 7) ee

Niehaus v. Kansas Bar Ass’n,

793 F.2d 1159 (10th Cir. 1986) ........

Paquin v. Federal Nat. Mortg. Ass'’n,—

119 F.3d 23: @.C. Cw. 1997) .........

Roldan v. Racette,

984 F.2d 85 (2d Cir. 1993) ...........

Summers v. State of Utah,

927 F.2d 1165 (10th Cir. 1991) ........

Taylor v. Farrier,

910 F.2d 518 (8th Cir. 1990) ..........

Vil

Thomas v. Arn,

CPO Ue, PA CRD oc ks ok we ee 16, 18

United States Dominator, Inc. v.

Factory Ship Robert E. Resoff,

768 F.2d 1099 (9th Cir. 1985) ......... 13, 37

United States v. Akinola,

96> F.20 1105 (ist Cr. 1993) 2... ees 15

United States v. Brown,

79 F.3d 1499 (7th Cir. 1996),

cert denied, 117 U.S. 196 (1996) ....... 15, 16

United States v. Dexter,

oo F398 ite (ree Ce. 89. os os ers 17

United States v. Hall,

Fee Fae Bee CU. Ieee oo vee 16

United States v. Male Juvenile (95-CR-1074),

ete me & oe fe 8, 7) renee e 17

United States v. Smith,

869 F.2d 348 (7th Cir. 1989) ............. 13

United States v. Walters,

G30 F.26 347 Gee Cor. T9681)... cc eke we es 16

United Steelworkers of Amer. v.

New Jersey Zinc, 828 F.2d 1001

(3rd Cir. 1987) ..... Ses oR al me ere 15

Video Views, Inc. v. Studio 21, Ltd.

797 F.2d 538 (7" Cir. 1986) ............. 16

Vill

nance he Abad indi le!

Wards Cove Packing Co., Inc. v. Atonio,

490 U.S. 642, 109 S.Ct. 2115 (1989) ........ 14

Wells v. Shriner’s Hosp.,

109 F.3d 198 (4th Cir. 1997) ............. 15

Wessmann vy. Gittens,

160 F.3d 790 (ist Cir. 1998) ............. 13

Willis v. Sullivan,

931 F.2d 390 (6th Cir. 1991) ............. 15

STATUTES:

TE a, GD sok os ha ee 14, 15, 16

» SiR a FL eee eee oe 15, 16

ke se ak kk a OR 1

Se 3 sk a ss a KOK ee 1

er ee we NS os bs okie 5 a ee we l

Federal Rules of Evidence R. 702 ............ 13, 14

Federal Rules of Evidence R. 703 ............... 13

Federal Rules of Evidence R. 705 ............ 13, 14

Federal Rules of Evidence R. 803(6) ............. 20

Federal Rules of Evidence R. 1006 .............. 20

OTHER AUTHORITIES:

Friedenthal, Discovery and Use of an Adverse

Party’s Expert Information,

14 Stan. L. Rev. 455 (1962) ........... 13-14

Timothy Perrin, Expert Witness Testimony:

Back to the Future, 29 U.Rich.L.Rev.

I ee a as hae Wa a ek ee 14

OPINION BELOW

The opinion of the United States Court of Appeals for

the Fifth Circuit is reported at 200 F.3d 291 (5" Cir. 2000).

A copy of the Opinion is included in the Appendix as at

Appendix A at la-26a. The Order of the District Court on

remand for the Western District of Texas is not published.

The Order is included in the Appendix B at 27a - 48a. The

District Court ordered entry of the final judgment on July 28,

1997 which is printed in Appendix D at 53a to 56a.

JURISDICTION

The United States Court of Appeals for the Fifth

Circuit issued its Opinion on January 05, 2000. Petitioners

filed a Motion for Extension of Time to file a Petition for

Writ of Certiorari. The motion was granted by Honorable

Justice Scalia extending the deadline for filing the petition

until May 4, 2000. The Petition for Writ of Certiorari has

been timely filed. The Court’s jurisdiction is invoked

pursuant to 28 U.S.C. §§1254(1) and 2106.

CONSTITUTIONAL AND STATUTORY

PROVISIONS INVOLVED

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

42 U.S.C. § 2000 e-2(a) provides as follows:

“It shall be an unlawful employment practice

for an employer

(1) to fail or refuse to hire or to

discharge any individual with respect

caacecriianaacaaasitiaiaataaiaanaaaamaaaaaati iain

to his compensation, terms, conditions,

or privileges of employment, because

of such individuals race, color,

religion, sex, or national origin; or

(2) to limit, segregate or classify his

employees or applicants’ for

employment in any way which would

deprive or tend to deprive any

individual of employment opportunities

or otherwise adversely affect his status

as an employee, because of such

individual's race, color, religion, sex,

or national origin”.

STATEMENT OF THE CASE

This litigation has a tortured history. This action was

brought by Manuel and Jesus Mufioz as a class action in 1982

alleging national origin and sex discrimination at Kelly Air

Force Base. The action was initially certified in March of

1983 by an Administrative Judge of the United States Equal

Employment Opportunity Commission as a class action and

certified by the court below following the Fifth Circuit

Court’s first remand. The class was defined as “ all Hispanic

male employees, GS-09 to GS-14 at the SA-ALC, who on or

after 2/26/80 were eligible for promotion to positions at grade

GS-11 and above at SA-ALC which are covered by Merit

Promotion Certificates produced by the Central Civilian

Personnel Office at SA-ALC, up to and including the date of

09/26/91.”

Plaintiff Mufioz on behalf of 2742 class members

challenged the manipulation of the Promotion Process by

Managers/Supervisors and Civilian Personnel Office to favor

non-Hispanics employees at Kelly Air Fore Base, Texas.

Supervisors/Managers initiate the promotion process by

completing a Standard Form 52 (request for personnel action).

This same form is used to credit employees with additional

experience, by means of retroactive details, reassignments,

and non-competitive promotions.

The Promotion Placement and Referral System used by

the United States Air Force to sort experience and rank

employees for promotions has a data base storing information

including Office of Personnel Management basic eligibility

requirements, Promotion Evaluation Patterns (PEP) for all

positions at Kelly Air Force Base and the qualifications

including experience of all employees assigned to Kelly.

The first step after a fill request is received by the

Civilian Personnel Office is to search for a PEP for the

position to be filled. If one exists, a request is initiated for a

Candidate Referral Roster which ranks employees by

Proficiency Level Factors (PLF) sorted first by numerical

appraisal as adjusted by algorithms, then by awards and,

finally, by service computation date. The PPRS system also

produces and prints a Disparate Impact Barometer for every

PLF. At the end of this process a Merit Promotion Certificate

is generated with the names of ten to fifteen employees. The

certificate is then forwarded to the selecting official(s).

Among the practices challenged were the funneling of

Hispanics males into segregated dead-ended job series that

created a glass ceiling for Hispanics at the GS11 level.

At Kelly Air Force Base, plaintiffs complain the

manipulation starts with the use of the SF-52 to falsely credit

employees with experience to favor women and Anglos. The

PPRS system has in the database multiple PEPS for every job

series. Therefore, if a Supervisor/Manager does not get a list

which includes the name of favored employee, the manager

may request a new listing before a merit promotion is printed.

He or she can also change the skill shreds to obtain the

favored result. Plaintiffs complaint that these actions were

intentionally done to deny promotion opportunities to favor

women and Anglos.

The class members in this litigation are part of a

workforce constituting twenty-five percent of the total

Hispanic workforce of the U.S. Air Force. The Air Force is

the largest federal employer of Hispanic civilians. The issue

of assuring equality for Hispanic employees is urgent since

the latest United States Office of Personnel Management

(OPM) report concludes that Hispanic employees are the only

minority which continue to be underrepresented in federal

civilian employment. The elimination of promotion barriers

including both institutionalized and intentional discrimination

is a matter of national interest because Hispanics continue to

be severely underrepresented at the GS-11 and above grades,

nation-wide.

Following the first remand by the Fifth Circuit this

action was certified as a class action. Despite the number of

class members involved in the litigation the Magistrate Judge

limited the plaintiffs and the class to twenty-five (25)

witnesses. Access was denied to the secret algorithms used

by the Air Force to assess weights to various subjective

elements of the annual job performance review and develop

the actual appraisal score used to sort and rank candidates.

Records were admittedly destroyed which were critical

evidence documenting the alleged manipulation of experience,

details, and reassignments to favor non-Hispanic candidates.

The Air Force developed a database used by their experts

which plaintiffs were denied access to because of the cost of

over one million dollars imposed by the Air Force as a

condition for obtaining a copy of the database.

Plaintiffs filed a motion to compel production of

certain critical documents in their Second Request for

Production of Documents. At a hearing on the motion, an

agreement was reached on some of the documents in dispute

but the Magistrate ruled on four of the areas of dispute

including whether defendant should be required to produce

SF-52 forms, computer generated media, career enhancement

program information, and the Air Force Algorithm used in the

process of sorting and ranking candidates based on appraisal

scores. The Magistrate denied plaintiffs’ request to compel

production of the request for personnel action (SF-52) forms

on the basis of burdensomeness and expense. On April 26,

1993 the plaintiffs having failed to file objections to the order

on the production of the algorithm the Magistrate entered an

order removing the documents from the locked vault of the

District Clerk and returning the documents to defendant’s

counsel.

In August of 1993, plaintiffs filed another motion to

compel discovery seeking information concerning the

Defendant’s failure to preserve and the destruction of critical

records. In addition plaintiffs sought to compel defendant to

answer interrogatories concerning the average time required

to progress from each grade level to the next grade and the

explanation for the non-selection of the class witnesses for

promotions. The Magistrate denied most of the August 1993

motion to compel other than the request for information

concerning education provided by the government.

The Magistrate also denied plaintiffs’ motion to

compel defendant to provide certain computerized data in

merged form. In July 1994, after discovering during the

course of the deposition of defendant’s expert that he had

relied on information derived from the database, Plaintiffs

requested that defendant produce the database. Defendant

obstructed justice by refusing to provide a copy of the

database unless paid the amount of $1,011,195.73. Plaintiffs

instead filed a motion to compel discovery of the database.

The Magistrate without explaining the basis for his decision

denied the motion in August of 1994. The order was not

appealed to the District Court.

The Plaintiffs also filed a motion for a finding of

adverse inference on issue preclusion based upon defendant’s

admission of the destruction of records. The Magistrate

denied the motion. The Magistrate despite the failure of

defendant to timely respond to plaintiff's request for

admissions ordered the admissions struck and allowed

defendant to respond out-of-time to the requests.

REASONS FOR GRANTING WRIT

THE DECISION OF THE COURT OF

APPEALS CONFLICTS WITH

DECISIONS OF THE SUPREME COURT

A. The Courts Below Did Not Accord

Plaintiffs The Benefit Of Reasonable

Inferences In Violation Of Prior

Supreme Court Precedent.

The opinion of the Fifth Circuit affirming the granting

of summary judgment in favor of the Air Force gives the

movant the benefit of reasonable inferences from the evidence

contrary to this Court’s holding in Celotex Corp. v. Cattrett,

477 U.S. 317, 106 S. Ct. 2548 (1986) and Anderson v.

Liberty Lobby, Inc., 477 U.S. 242, 106 S.Ct. 2502 (1986).

Based entirely upon the Air Force’s statistical analysis, the

trial Court granted summary judgment in favor of the Air

Force over the class claims. The statistical analysis relied

upon by the Court below was a summary by year and grade

of various personnel actions. The analysis did not examine

the extent to which segregation within the job series at Kelly .

tainted the use of skill codes to determine both basic eligibility

for promotion and referral for promotion consideration nor

did the analysis consider the role of sex in affecting promotion

opportunities.

In Table 1, using the pool of all Kelly GS-09 through

GS-12 personnel with the required one year in grade and fully

successful or higher performance ratings, Dr. Gould

calculated the relevant proportion which Hispanic males,

Hispanic females, other males and other females constituted

of those eligible for promotion. He then generated a table

which provides critical evidence supporting plaintiffs’

contention that throughout the class period Hispanic males

were deprived of equal promotion opportunities. At Table 1

of the report, Dr. Gould summarized the promotion data for

Hispanic males as compared with the Hispanic male

proportion of those eligible and qualified for promotion. See

Appendix E, p. 59a.

Table 2 is another chart compiled by Dr. Gould,

showing the extent to which Hispanic males were

disadvantaged throughout the class period and supports the

inference of class-wide discrimination. See Appendix E, p.

60a.

The statistical evidence prepared by the Air Force for

Wayne Casio relied upon by the district court in granting

summary judgment only shows that Hispanic males are not

disadvantaged when Hispanic women are included in the

comparison and all job series and grades are lumped together.

However, another expert report prepared by Dr. Gould for

the Air Force shows that for essentially every year of the class

period both Hispanic and non-Hispanic males are severely

underrepresented in promotions when the comparison is

limited to those objectively qualified-for promotion and when

ethnicity by sex is examined.

The sex disparities between those eligible and qualified

for promotion and those who actually were promoted at Kelly

render the analysis relied upon by the District Court below as

essentially meaningless. Cascio’s analysis demonstrates that

overall Hispanic males were not disadvantaged during the

class period only because Cascio lumped together all women

and non-Hispanic males in the comparison with Hispanic

males.

By lumping Hispanic females with males and non-

Hispanic females, the sex disadvantage suffered by Hispanic

males was obfuscated. By granting summary judgment based

upon defendant’s statistical analysis, class members were

denied the benefit of favorable inferences which could

reasonably be derived from the conflicting statistical data

contrary to this Court’s previous Rule 56 rulings.

Table 2 provides compelling evidence that the

disparities are the result of the operation of Kelly’s

Affirmative Action Plan. As shown in Table 2, non-Hispanic

males were also similarly disadvantaged throughout the class

period. Non-Hispanic males also received fewer promotions

than expected from 1981 through 1988. The disparities are

not quite as severe for non-Hispanic males as for Hispanic

males. However, the disparities support the inference that

women were favored during the entire class period.

Moreover, for each year from 1983 through 1992 both

Hispanic and non-Hispanic women received a_ larger

proportion of the promotions than expected given their

proportion of those qualified for promotion.

The results of a regression analysis based on the 1986-

1992 database also supports plaintiffs’ allegations of

intentional discrimination. Dr. Gould found that Hispanic

males had statistically significant higher job performance

ratings before promotion than other groups and that the race

by sex mean differences in the before promotion job

performance ratings and promotion factor ratings are

significantly different ever. when grade education and

experience are held constant. Dr. Gould noted that the

differences account for only .48 to .57 percent of the variance

in ratings so he believed the differences to be of little practical

significance.

The Court of Appeals below did not take into

consideration the statistical evidence produced by Dr. Gould.

This evidence is important because Dr. Gould not only

produced statistical evidence supporting the inference of class-

wide discrimination throughout the class period but he also

questioned whether the use of affirmative action was the

source of the disparities and the over-promotion of women

throughout the period. This evidence, of course, supports

plaintiffs’ claim that Kelly A.F.B. manipulated retroactive

details, temporary assignments and non-temporary promotions

throughout the class period to favor females.

Despite the multitude of procedural obstacles including

the refusal by the Air Force to accord access to critical

documents and data there is sufficient evidence that the Air

Force throughout the class period manipulated the promotion

process to unlawfully favor the promotion of women and to

deprive Hispanic males of equal employment and promotion

opportunities. A primary focus of this litigation was the

alleged manipulation of the promotion process and regulations

to favor Anglos and women during the class period. This

aspect of the lawsuit is supported by Dr. Gould’s report and

supports the inference that throughout the class period Kelly

Officials favored women. The favoring of females accounts

for of the observed disparity in the promotion rates of other

females and Hispanic males. Thus, there is evidence in the

record which creates a genuine issue of material fact.

Giving plaintiffs, as non-movants, the benefit of

reasonable inferences, this evidence generated a conflict in the

Statistical evidence which should not have been resolved in

favor of the Air Force based upon prior precedent of this

Court. See Celotex Corp. V. Catrett, 477 U.S. 317 (1986),

Anderson v. Liberty Lobby, Inc., 477 U.S. 242 (1986).

B. The Magistrate’s Restrictions on Discovery

Violated Hickman v. Taylor.

1. The Magistrate Entered Critical

Discovery Orders and _ Trial

Management Orders Which

Substantially Prejudiced Plaintiffs

and the Class.

The Magistrate denied a motion to compel defendant

to provide a copy of the computer database used by

defendant’s expert to prepare the statistical analyses thereby

depriving plaintiff of an effective opportunity to cross

examine such expert concerning the reliability of the data base

or the analysis or to propose alternative explanations for the

results obtained.

The Magistrate denied the motion to compel defendant

to provide copies of SF-52 (request for personnel action)

forms which identify the requesting and authorizing officials

and initiate the selection/promotion process thereby depriving

the class of evidence needed to prove that officials were

manipulating the promotion process by falsely giving favored

employees credit for experience through retroactive details

and assignments.

The Magistrate also denied plaintiffs’ motion to

produce the algorithms used to add weight to subjective

elements of the appraisals when calculating the total appraisal

score during the ranking process. The Magistrate conducted

an in-camera inspection of the algorithms and determined the

algorithms were not culturally biased and then denied

plaintiffs’ motion to compel production of the algorithms.

The Magistrate, after plaintiffs failed to file objections to the

order, then entered an order removing the sealed documents

from the locked vault of the District Clerk and returned the

instruments to defendant’s counsel. As a result, the

documents are not part of the record and plaintiffs have been

deprived of an effective opportunity to obtain a review of the

decision. The Magistrate failed to recognize that the plaintiffs

were charging that their equal or higher appraisals than others

were converted into values lower than others by the

application of the algorithms.

Given the defendant’s subsequent challenge to

plaintiffs’ statistical analysis based upon reliability of the data,

the refusal of the Magistrate to grant the motions to compel

)

substantially prejudiced plaintiffs in making their statistical

case of class-wide discrimination:

The pretrial rulings in connection with the discovery

orders are normally reviewed under the abuse of discretion

standard. Herein, the failure to provide plaintiffs a copy of

defendant’s computer database, the SF-52’s, the algorithms,

and the reasons for the non-promotion of plaintiffs and class

members deprived class members of meaningful and effective

opportunity to establish Title VII liability.

“In Title VII litigation, in which plaintiffs are. . .

required to demonstrate pretext, courts have customarily

allowed a wide discovery of personne! files. All or some

parts of these personnel files could be central to the plaintiffs’

effort to prove pretext.” Coughlin v. Lee, 946 F.2d 1152,

1159 (5th Cir. 1991)(citations omitted). Pretext can be

demonstrated by circumstantial evidence. /d. at 1159. The

plaintiffs sought discovery of requests for personnel action

(“SF-52’s”) regarding promotions and assignments for which

other employees who were arguably less qualified for the

actual work were chosen, along with the records of the

reasons for non-promotion of plaintiffs and class members.

Such evidence is clearly relevant to establish the plaintiffs’

prima facie case and to establish pretext.

Similarly, the plaintiffs requested discovery of the

algorithms used by the defendant to disproportionately weight

certain characteristics of candidates for promotion, arguably

resulting in unfair discrimination. Such evidence is also

plainly relevant both to plaintiffs’ prima facie case and to

considering pretext. Cf. Paquin v. Federal Nat. Mortg.

Ass’n, 119 F.3d 23 (D.C. Cir. 1997) (Reversing district

court’s grant of summary judgment as premature when

plaintiff needed discovery of underlying narrative evaluations

underlying other employees’ numerical performance ratings

in order to respond to the defendant’s motion for summary

judgment. “If [Defendant’s] proffered reason is a pretext for

discrimination, then comparable~ evaluations of other

[employees] at [Plaintiff's] level are precisely the type of

evidence that might enable [Plaintiff] to make his case. Cf.

McDonnell Douglas [Corp. v. Green], 411 U.S. 792 at 804

(1973).” Paquin at 28).

Rule 703 of the Federal Rules of Evidence requires

that an expert’s opinion be based on facts and data reasonably

relied upon by experts in a particular field.” A Court cannot

determine whether an opinion is admissible under Rule 703

unless the expert’s underlying facts and data are revealed.

See U.S. v. Smith, 869 F.2d 348 (7th Cir. 1989). An expert

must vouchsafe the reliability of the data on which he relies

and explain how the cumulation of that data was consistent

with the standards of the expert’s profession. See Wessmann

v. Gittens, 160 F.3d 790, 804-05 (1st Cir. 1998).

Rule 705 of the Federal Rules of Evidence provides

that an expert may be required to disclose the underlying facts -

or data on cross examination. Furthermore, Rule 702

requires that the Court itself evaluate the trustworthiness of

the factual basis upon which expert testimony is based. See

Daubert v. Merrell Dow Pharmaceuticals , 509 U.S. 579, 597

(1993); Kumho Tire Co., Ltd—»- Carmichael, 526 U.S. 137

(1999).

In order that the=right of cross examination be an

effective right, it is critical that the trial court allow

preliminary discovery of the underlying facts or data relied

upon by the expert. See Friedenthal, Discovery and Use of

an Adverse Party’s Expert Information, 14 Stan. L. Rev. 455

Re OE ee RT EO STON RE eT TREE

5a ae A SE a i ii i ee

(1962). See also Timothy Perrin, Expert Witness Testimony:

Back to the Future, 29 U.Rich.L.Rev. 1389 (1995).

Therefcre, the failure of the Magistrate to compel

defendant to provide plaintiffs with a copy of the computer

database precluded plaintiff from effectively cross-examining

the expert on the underlying facts as authorized by Rule 705

and also precluded the court from determining the reliability

and trustworthiness of the analysis as required by Rule 702 of

the Federal Rules of Evidence.

This Court has previously emphasized the critical role

of liberal discovery in litigating employment discrimination

cases because of the elusiveness of establishing intent and the

complexity of establishing disparate impact. See Wards Cove

Packing Co., Inc. v. Atonio, 490 U.S. 642, 109 S.Ct. 2115,

104 L.Ed.2d 733 (1989). The pretrial discovery rulings of

the Magistrate Judge did not adhere to the liberal spirit of the

Federal Rules of Civil Procedure and resulted in fundamental

unfairness.

2. The Doctrine Of Waiver Is

Inconsistent With The Principle of

Liberal Discovery Required By

Modern Federal Rules.

Decisions regarding trial procedures are normally

reviewed under the abuse of discretion standard. See Herring

v. New York, 422 U.S. 853, 862 (1975). Such decisions when

made by the Magistrate under a §.636(b)(1)(A) assignment are

not reviewable by the trial court unless clearly erroneous or

contrary to law. A Judge of the [district] court may

reconsider any pretrial matter under this subparagraph (A)

where it is shown that the Magistrate’s order is clearly

erroneous or contrary to law.”) 28 U.S.C. § 636 (b)(1)(A).

Most circuits have adopted a rule requiring a timely

challenge before the district judge of a magistrate’s ruling if

referred under §636 (b)(1)(B) as a precondition to appellate

review. See United States v. Akinola, 985 F.2d 1105, 1108

(1st Cir. 1993); McCarthy v. Manson, 714 F.2d 234 (2d Cir.

1983); Wells v. Shriner's Hosp., 109 F.3d 198, 200 (4th Cir.

1997); Willis v. Sullivan, 931 F.2d 390, 401 (6th Cir. 1991).

Some circuits extend this rule to a §636 (b)(1)(A) referral as

well. See Merritt v. International Bro. of Boilerworkers, 649

F.2d 1013, 1019 (Sth Cir. 1981) (“[A]lthough appellants

make numerous contentions as to the impropriety of the

magistrate’s order . . ., they neither appealed this order to the

district court nor appealed the final dismissal of the suit,

asserting error in the April 23rd order as a ground for relief.

Therefore, appellants have waived any arguments relating to

the correctness of the magistrate’s rulings. . . .”); United

States v. Brown, 79 F.3d 1499 (7th Cir. 1996), cert denied,

117 U.S. 196 (1996); United Steelworkers of Amer. v. New

Jersey Zinc, 828 F.2d 1001, 1007 (3rd Cir. 1987); Niehaus v.

Kansas Bar Ass’n, 793 F.2d 1159, 1164-65 (10th Cir. 1986).

However, other Circuit decisions support the

proposition that failure to object before the District Court

does not waive the right to appellate review. See Henderson

v. Carlson, 812 F.2d 874, 878-79 (3rd Cir. 1987) (a party

who failed to object to a magistrate’s report on an issue

referred under §636 (b)(i)(B) has not waived its right to

object on appeal to the legal conclusions contained therein),

cert. denied 484 U.S. 837 (1987); United States Dominator,

Inc. v. Factory Ship Robert E. Resoff, 768 F.2d 1099, 1102-

03 (9th Cir. 1985) (on review of final judgments, federal

courts have jurisdiction to review all interlocutory rulings

“that may have affected the outcome of the proceedings in

federal court”); Taylor v. Farrier, 910 F.2d 518, 520 (8th

Cir. 1990); United States v. Hall, 716 F.2d 826, 828-29 (11th

Cir. 1983).

This Court has not squarely dealt with the issue in the

context of a § 636 (b)(1)(A) referral, but has held that a court

of appeals, the Sixth Circuit, may adopt a rule which

conditions an appeal from a district court judgment adopting

a magistrate’s recommendation in a §636 (b)(1)(B) referral,

upon the filing of objections with the district court, and such

a rule, at least when it incorporates clear notice to the litigants

and an opportunity to seek an extension of time for filing

objections, is a valid exercise of the court's supervisory

power. Thomas v. Arn, 474 U.S. 140, 147 (1985). The

Supreme Court characterized the Sixth Circuit rule as a rule

of procedure, partly because of its prospective application.

Id. at 145-46. Such rules of procedure, according to the Sixth

Circuit, “should promote, not defeat the ends of justice.”

United States v. Walters, 638 F.2d 947, 950 (6th Cir. 1981).

“[BJecause the rule is a nonjurisdictional waiver

provision, the court of Appeals may excuse the default in the

interests of justice.” Thomas, supra, 474 U.S. at 155

(footnote omitted). A waiver rule “should not be employed

to defeat the ‘ends of justice.’*” U.S. v. Brown, 79 F.3d

1499, 1504 (7th Cir. 1996) (citing Video Views, Inc. v. Studio

21, Ltd., 797 F.2d 538, 540 (7th Cir. 1986) quoting United

States v. Walters, supra, at 949-950). “Equitable

considerations come into play when determining whether an

unchallenged pretrial ruling may yet be contested on appeal,

and under certain circumstances the failure to file objections

may be excused.” /d. at 1505. Such a rule “is a non-

jurisdictional waiver provision whose violation we may

excuse in the interest of justice.” Roldan v. Racette, 984

F.2d 85, 89 (2d Cir. 1993).

Thus the Seventh Circuit has reviewed challenges to

the magistrate’s rulings on appeal despite the absence of

objections to the magistrate’s report in the district court. U.S.

v. Dexter, 165 F.3d 1120 (7th Cir. 1999). The Second

Circuit, despite having adopted a general rule that failure to

object may operate as a waiver of further judicial review, held

that “because we find that the purposes of the waiver rule are

not advanced in the present case, we will permit appellate

review.” U.S. v. Male Juvenile (95-CR-1074), 121 F.3d 34,

39 (2nd Cir.1997). The Sixth Circuit has reviewed a

magistrate judge’s rulings in an evidentiary hearing and the

district court’s referral of a habeas petition and hearing to a

magistrate judge although the respondent did not object to the

magistrate’s report and recommendation and did not object to

the hearing. Mitchell v. Rees, 114 F.3d 571, 575 (6th Cir.

1997). “[FJailure to comply [with the requirement for

specific objections to a magistrate judge’s report] may be

excused in the interest of justice.” Neuman v. Rivers, 125

F.3d 315 (6th Cir. 1997) (citing Kent v. Johnson, 821 F.2d

1220, 1222-23 (6th Cir. 1987)). The Tenth Circuit has

reviewed a magistrate’s report and the district court's analysis

of that report when objections were served but apparently not

filed as is required, and the district court in failing to exercise

its discretion “perforce abused it.” Summers v. State of Utah,

927 F.2d 1165 (10th Cir. 1991). The Eleventh Circuit, citing

United States Dominator, Inc. v. Factory Ship Robert E.

Resoff, supra, held that it has jurisdiction to review a district

court’s non-final orders when those orders merge into a final

judgment of the district court, although there was no objection

to the magistrate’s report. Akin v. Pafec Lid. , 991 F.2d 1550,

1563 (11th Cir. 1993).

To require a litigant to challenge every pretrial ruling

in order to preserve the right to appellate review does not

serve the interests of judicial economy and deprives litigants

iia

ws Ea a rs — oo

of a determination and review by an Article III Court of

pretrial decisions which are not clearly erroneous or contrary

to law.

In the case at bar, because the district court did in fact

conduct a review of the magistrate’s report and

recommendation, as did the Fifth Circuit as well, refusal to

review the magistrate’s report would not advance the purposes

of the waiver rule to “prevent a litigant from ‘sandbagging’

the district judge by failing to object and then appealing,”

Thomas, supra, 474 U.S. at 148, and prevent the appeals

court from being forced “to consider claims that were never

reviewed by the district court.” /d. at 148. “When the

district court elects to exercise its power to review a

magistrate’s report de novo and renders an opinion resolving

an issue on the merits, there is no danger of ‘sandbagging’ the

district judge,” and strict compliance with the rule is not

necessary. /d. at 158 (Stevens, J., dissenting).

Moreover, equitable considerations weigh heavily in

favor of excusing the failure to challenge the pretrial rulings

before the District Court. First, the rulings at issue impact

not only on the named parties, but affect the absent 2742

members of the class.

Second, the rulings at issue are discretienary decisions

delegated by the District Court to the Magistrate in order to

promote judicial efficiency. This interest is undermined by

requiring litigants to seek District Court review of each

pretrial order.

Im complex litigation, whether a particular pretrial

decision is prejudicial is not always apparent until later in the

litigation process after the time for filing objections has

lapsed. Moreover, many of the pretrial decisions at issue are

subject to later modification by the Magistrate.

Rigid adherence to the doctrine of waiver encourages

sandbagging and hard ball discovery techniques and tactics by

litigants which is contrary to the public policy favoring liberal

and open discovery. See Hickman v. Taylor, 329 U.S. 495

(1947).

Moreover, denial of access to the algorithms, the

reasons for the non-promotion of plaintiffs and each of the

class witnesses deprived plaintiffs and class members of

evidence needed to establish pretext. Therefore, the refusal

of the lower Courts to find prejudice has deprived plaintiffs

and the putative class of due process.

oa The Court’s Failure to Consider

Plaintiffs’ Lay Evidence Violate Rule

56 by Requiring Plaintiffs Not

Merely to Generate a Genuine Issue

of Material Fact But to Establish

Their Case on the Merits.

This Court in Celotex Corp. v. Catrett, 477 U.S. 317,

at 324,106 S.Ct. 2548, 2553 (1986) held that the facts on

which non-movant relies to defeat the summary judgment

motion must be admissible at trial but they need not be in

admissible form as presented in the non-movant’s opposition

to the motion. Herein the Courts below rejected two lay

declarations for reasons which violate this Court’s holding in

Celotex Corp.

This first lay declaration was simply a summary

generated by compiling the results of reports included in

defendant’s business records. During the automated job

referral and promotion process, the Air Force generates a

report which it identifies as an adverse impact barometer.

Mufioz’s declaration merely states that in 88% (1374

of 1555) of the candidate referral rosters these records show

an adverse impact upon Hispanic males at the application of

basic-eligibility stage of the process.

The plaintiffs argued unsuccessfully below that this

declaration was admissible at trial under Rule 1006 of the

Federal Rules of Evidence and that the records are admissible

under Rule 803(6) of the Federal Rules of Evidence. The

Court of Appeals concluded that the trial court had not abused

its discretion in striking the affidavit reasoning that the

declaration sought to introduce new statistical evidence after

an extension for the filing of expert reports had passed.

Plaintiffs unsuccessfully urged below that as a

summary of the results of defendant’s records the declaration

did not constitute an expert report and would be admissible at

trial.

The second affidavit rejected by the Court’s below

consisted of a chart showing that seven of the largest job

series accounting for over 50% of the promotions during the

class period were extremely segregated on the basis of

national origin. This affidavit was rejected below because

Galvan, the declarant, is not an expert and therefore can not

draw any Statistical inferences.

Both of these declarations constitute attempts by

plaintiffs faced with the challenge to their own expert’s

testimony and analysis to show that the statistical analysis

upon which the Air Force based its motion for summary

judgment was inherently flawed and unreliable.

The statistical analysis advanced through Cascio did

not even consider the extent to which Hispanic males are

concentrated in dead-ended, ethnically segregated, job series,

or that the application of basic eligibility criteria excluded

Hispanic males in 88% of the promotions.

That Kelly job series one dead-ended and segregated

is knowledge within the preview of a laywitness. Similarly

the employer’s documents with adverse impact barometer

results are admissible as business records. Therefore, both

declarations provide evidence which would be admissible at

trial.

D. The Court’s Rejection of Plaintiff's

Statistical Analysis violates Daubert.

The Fifth Circuit ruling in this case upheld the district

court’s exclusion of the analysis and testimony of plaintiffs’

expert, Dr. Benz, based on this Court’s holding in Daubert v.

Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579, 596

(1993), and Kumho Tire Co., Ltd. v. Carmichael, 526 U.S.

137 (1999). Munoz v. Orr, 200 F.3d 291, 301 (Sth Cir.

2000). The Fifth Circuit articulated the standard for

admission of an expert's opinion: “If the basis for an expert’s

opinion is clearly unreliable, the district court may disregard

that opinion in deciding whether a party has created a genuine

issue of material fact.” id. (citations omitted) (emphasis

added). The Court further quoted Daubert’s holding that if

“the trial court concludes that the scintilla of [expert] evidence

presented supporting a position is insufficient to allow a

reasonable juror to conclude that the position more likely than

not is true, the court remains free to . . . grant summary

judgment,” id. (quoting Daubert, supra, at 596) (emphasis

added).

The Fifth Circuit’s analysis, however, relied on

criteria which are not the basis for an exclusion of expert

testimony under this Court’s holdings in Daubert or Kumho.

Although the opinion states that “Dr. Benz’ analysis fails to

meet the standards for admissibility of scientific evidence in

that the district court found that his methods were not in

accord with those of experts in his field,” id. (citing Kumho

Tire Co., 119 S.Ct. at 1176), the bases listed for this

conclusion do not support it, to wit: (1) that one of the

assumptions of the expert analysis is “an indicator that he

lacked the necessary objectivity to make his analyses

credible,” (2) that he made “a statement which he later

recanted as “overzealous;” (3) that he did not consider in his

analysis certain other variables as explanations for observed

discrepancies in promotion rates; (4) that he did not use a

particular methodology, a multiple regression analysis; and

(5) that he relied on compilations of data supplied to him by

plaintiffs. 200 F.3d 301-302. (emphasis added). None of the

stated bases for this conclusion are the sort of criteria noted

in Daubert as relevant for courts to consider when

determining the reliability of an expert's testimony. The fact

that there are other methodologies that the expert did not use,

that there are differences of opinion as to the relevancy or

importance of the factors considered in his analysis, and there

are alleged weaknesses in his credibility does not make

plaintiff's expert’s analysis or conclusions inherently

unreliable.

Such weaknesses in the expert’s methodologies and

attacks on his credibility go to the weight to be given to the

expert testimony, not to its admissibility. Even the Fifth

Circuit’s finding, by the clear meaning of the language used,

recognizes that the court is weighing the evidence, not

properly determining its admissibility: “Taken cumulatively,

the problems with Dr. Benz’ expert evidence indicate that his

expert testimony could be unreliable.” 200 F.3d 302.

(emphasis added). The parties have the right to have issues

of fact resolved by the trier of fact, which means that the

court must allow the jury to hear proffered expert testimony

unless it is clearly unworthy of reliance. The Fifth Circuit’s

finding that problems with Dr. Benz’ expert testimony

“indicate that [it] could be unreliable” does not meet the

articulated standard of “clearly unreliable.” The ruling in this

case violates the court’s proper “gatekeeper” function under

Daubert, according to the cautionary words of the Second

Circuit that trial judges must not assume “the role of St. Peter

at the gates of heaven, performing a searching inquiry into the

depth of an expert witness’s soul” and thereby usurp “the

ageless role of the jury” in evaluating witness credibility and

the weight of the evidence. McCullock v. H.B. Fuller Co. , 61

F.3d 1038, 1045 (2d Cir. 1995).

CONCLUSION

For the reasons set forth above, the Petition for a Writ

of Certiorari should be granted.

Respectfully submitted,

/s/

Larry R. Daves

Daves & Associates

405 W. Magnolia Avenue

San Antonio, Texas 78212

(210) 733-3299

Attorney for Petitioners

APPENDIX A

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

[Filed January 5, 2000]

No. 97-50736

, JESUS G. MUNOZ;

MANUEL MUNOZ, JR.,

Plaintiffs-Appellants,

VERNE ORR; ET AL.,

Defendants,

F. WHITTEN PETERS,

SECRETARY OF U.S.

DEPARTMENT OF THE

AIR FORCE,

Defendant-Appellee.

Nee eee eee eee NS

Appeals from the United States District Court

for the Western District of Texas

OPINION

Before JOLLY, BARKSDALE and BENAVIDES, Circuit

Judges.

Court of Appeals Opinion - 1/5/00

BENAVIDES, Circuit Judge:

This appeal represents the final phase of what has been

protracted and difficult litigation for both sides. Plaintiffs

allege that the civilian employee promotion system used at

Kelly Air Force Base has operated to discriminate against

Hispanic males. After a prolonged discovery and motions

period, the district court granted the defendant’s motion for

summary judgment and plaintiffs appealed. Upon initial

submission, we ordered a limited remand so that the district

court could explain its reasoning with respect to its summary

judgment. The district court prepared an order explaining its

decision and the parties filed supplemental briefs. We must

now decide the issue of whether the district court erred in

granting summary judgment for the defendant, given the

limited evidence before it.

I. Factual and Procedural History

Plaintiffs Jesus G. Mufioz and-Manuel Mufioz, Jr. are

Hispanic males, brothers, employed as part of the civilian

workforce at Kelly Air Force Base near San Antonio, Texas

[Kelly]. They brought this suit on behalf of themselves and

all Hispanic male civilian employees at Kelly under Federal

Rule of Civil Procedure 23(b)(2). Plaintiffs allege that the

promotion system used by the Air Force for civilian

employees has a disparate impact on Hispanic males, i.e. that

the system results in fewer Hispanic males receiving

promotions than would be expected based on the proportion

of the civilian workforce at Kelly that they comprise.

An explanation of plaintiffs’ claims first requires an

understanding of the general context in which hiring and

Court of Appeals Opinion - 1/5/00

promotion takes place at Kelly. Civilian employment at Kelly

is organized on the “GS” (General Service) scale, a salary and

promotions grid in common use throughout civilian federal

employment. Each GS level, or grade, represents a salary

range. The GS level to which an employee is assigned

depends upon such factors as education level, skill level, time

in service, and degree of authority of the position he occupies.

Over the course of a career in federal civilian employment, an

employee may occupy several different GS levels or steps

within a GS level. Certain GS levels are not open to

employees without particular qualifications (e.g. a college

degree or its equivalent). As a general matter, each job

opening is allocated to a particular GS level or range of

levels, thus setting the maximum salary that position could

accrue. A federal civilian job also has skills requirements and

responsibilities attached to it that in part define its GS range.

At Kelly, civilian promotions are handled in part by a

Merit Promotion Plan that includes an automated system

called the “Personnel Placement and Referral System,” or

PPRS. Under PPRS, employees need not submit applications

for promotions. Rather, as a position becomes available,

PPRS considers all eligible employees within the defined area

of consideration for the position (e.g. Kelly Air Force Base or

the entire Air Force). PPRS_ recursively eliminates

employees under increasingly specific job requirements until

the desired number of candidates is reached. PPRS thus

works like a funnel, at first considering all nominally eligible

employees for a promotion and then narrowing the field based

on successively more detailed requirements until a short,

ranked list is generated. Each stage of this narrowing is

known as a “progression level factor,” or PLF. Ties between

employees are broken by reference to appraisal scores,

Court of Appeals Opinion - 1/5/00

awards, and service computation date, in order. The list is

hand-checked and then forwarded to the selecting official,

who chooses one of the employees for the promotion.

The automated program is not without subjective

elements. At the beginning of the promotion process, three-

person teams establish and rank the job skills relevant to the

position. This ranked list is called a “Promotion Evaluation

Pattern,” or PEP. The PLFs used by the automated program

to narrow the field for a given promotion are derived from

these PEPs. Furthermore, within the automated PPRS

program, ties between eligible employees are broken in part

by appraisal scores and awards and service computation dates.

An employee’s appraisal scores and receipt of any awards

depend, to a large degree, on the discretion of his supervisors.

Lastly, after a finite list of names for a promotion has been

prepared by the PPRS, a selecting officer chooses one

employee from the group. Though the officer’s range of

choice is limited to the list derived from the PPRS, the actual

selection from within the group is left to the selecting officer’s

discretion. Thus, promotions at Kelly comprise both

subjective and objective components that are significantly

intertwined.

Plaintiffs filed this action in 1985, alleging sex and

national origin discrimination in violation of Title VII of the

Civil Rights Act of 1964, as amended, 42 U.S.C. § 2009 et

seq. Plaintiffs filed this case as a class action under Federal

Rule of Civil Procedure 23(b) (2) on behalf of themselves and

all other Hispanic male civilian employees, contending that

the promotion system at Kelly had an adverse disparate impact

Court of Appeals Opinion - 1/5/00

on Hispanic males.' In February of 1989, the district court

granted summary judgment for defendant, finding that

plaintiffs had failed to exhaust their administrative remedies.

This Court reversed that initial summary judgment and

remanded for further proceedings. Muioz v. Aldridge, 894

F.2d 1489 (Sth Cir. 1990).

On remand, the case was referred to a magistrate judge

who held a class certification hearing and then recommended

that the case be certified as a class action. The class was

defined as “all Hispanic male employees, GS-09 to GS-14 at

the SA-ALC, who on or after 2/26/80 were eligible for

promotion to positions at grade GS-11 and above at SA-ALC

which are covered by Merit Promotion Certificates produced

by the Central Civilian Personnel Office at SA-ALC, up to

and including the date of 09/26/91.” The class was certified

in accordance with the magistrate’s report.

During discovery, plaintiffs sought certain information

regarding the Air Force’s promotion procedures, including

access to the algorithm used in the automated PPRS process.

' Plaintiffs’ focus has shifted somewhat over time. In

briefs on this appeal, they contend that they have brought disparate

impact and disparate treatment, as well as both individual and class

Claims.

> The SA-ALC referred to in the class definition is the San

Antonio Air Logistics Command, the employer of the class

members working at Kelly Air Force Base. Merit Promotion

Certificates are issued as part of the Merit Promotion Plan, the

promotion system which plaintiffs challenge and of which the PPRS

is a part.

Court of Appeals Opinion - 1/5/00

After an in camera review of the algorithm, the district court

denied plaintiffs’ request. No objections were filed to that

denial. Experts for both sides filed reports. Discovery was

re-opened in order to allow plaintiffs’ expert, Dr. Benz, to

file two additional reports on which he was afterwards

deposed by the defense. Plaintiffs also submitted affidavits

from certain class members explaining their personal

experiences with the promotion system at Kelly. Two

plaintiffs, Manuel Munoz, Jr. and Michael Galvan, submitted

additional affidavits containing partial analyses of Kelly’s

promotion data. After discovery was closed for the second

time, upon defendant’s motion, the district court ordered

summary judgment against plaintiffs.

Plaintiffs appealed the summary judgment to this

court. We ordered a limited remand so that the district court

could explain its reasoning. We now have before us the

original appeal, the district court’s order explaining its

reasons for granting summary judgment, and supplemental

briefs filed by the parties in response to the district court’s

explanation.

II. Analysis

The primary issues raised in this case are whether the

district court properly excluded plaintiffs’ expert’s affidavits

as being unreliable, whether plaintiffs’ case should survive

summary judgment even without their expert’s statistical

evidence, and whether any individual claims brought by

plaintiffs survive the summary judgment order. Plaintiffs also

argue that various rulings during the discovery period

improperly deprived them of the opportunity to develop their

case.

preteen:

Court of Appeals Opinion - 1/5/00

The litigation in the trial court has concentrated on

plaintiffs’ disparate impact class claims. As discussed below,

issues have been raised in this appeal regarding a disparate

treatment class claim and both disparate impact and disparate

treatment individual claims.

In the context of Title VII litigation, we recognize two

types of discrimination claims: disparate treatment and

disparate impact. Disparate treatment refers to deliberate

discrimination in the terms or conditions of employment, in

this case, promotion, on account of race, national origin, or

gender. The prima facie elements of a claim for disparate

treatment are: (1) that the plaintiff is a member of a protected

class under the statute; (2) that he applied and was qualitied

for a job or promotion for which his employer was seeking

applicants; (3) that, despite his qualifications, he was rejected;

(4) that afterwards the position remained open and the

employer continued to look for candidates with plaintiff’s

qualifications. See McDonnell Douglas Corp. v. Green, 411

U.S. 792, 802 (1973).

Once that showing has been made, the burden of

production shifts to the employer to articulate a legitimate,

non-discriminatory reason for the employment action. See id.

at 802-03. The burden of persuasion, however, remains at all

times with the plaintiff. See Texas Dept. of Community

Affairs v. Burdine, 405 U.S. 248, 253 (1981). In order to

win his disparate treatment claim, the plaintiff must then

demonstrate that the reason articulated by the employer was

pretextual, see McDonnell Douglas, 411 U.S. at 805,

meaning a pretext for discrimination, per se. See St. Mary’s

Honor Ctr. v. Hicks, 509 U.S. 502, 510-12 (1993). The

Court of Appeals Opinion - 1/5/00

plaintiff still bears the burden of showing intent on the

employer’s part. See id.

, Disparate treatment claims can be brought as class

actions as well. Plaintiffs in a class action disparate treatment

case must show a “pattern or practice” of discrimination by

the employer, i.e. that “racial discrimination was the

_ company’s standard operating procedure - the regular rather

than the unusual practice.” Teamsters v. United States, 431

U.S. 324, 336 (1977). Proving a pattern or practice is

necessary to establishing a prima facie case in a disparate:

treatment class action: “Proving isolated or sporadic

discriminatory acts by the employer is insufficient to establish

a prima facie case... .” Cooper v. Federal Reserve Bank of

Richmond, 467 U.S. 867, 875-76 (1984).

Disparate impact claims, recognized in Griggs v. Duke

Power Co., 401 U.S. 424 (1971), do not require proof of

intent to discriminate. Instead, they focus on facially neutral

employment practices that create such statistical disparities

disadvantaging members of a protected group that they are

“functionally equivalent to intentional discrimination.”

Watson v. Fort Worth Bank and Trust, 487 U.S. 977, 987

(1988). Plaintiffs must identify specific practices as being

responsible for any observed disparities, see Johnson v. Uncle

Ben’s, Inc., 965 F.2d 1363, 1367 (Sth Cir. 1992), cert.

denied, 511 U.S. 1068 (1994), and must conduct a systemic

analysis of those employment practices in order to establish

their case. See Black Fire Fighters Ass'n v. City of Dallas,

905 F.2d 63, 63 (Sth Cir. 1990). Disparate impact claims

may be brought by either individual plaintiffs or a class. In

either case, the evidence will focus on the degree of statistical

Court of Appeais Opinion - 1/5/00

disparity between protected and non-protected workers in

regards to employment or promotion.

A. Standard of Review

We review a grant of summary judgment de novo. See

Frazier vy. Garrison Indep. Sch. Dist., 980 F:2d 1514, 1520

(Sth Cir. 1993); E.E.0O.C. v. Southern Publishing Co., 894

F.2d 785, 789 (Sth Cir. 1990). Exclusion of expert testimony

under Federal Rules of Evidence Rule 702 is within the

traditional discretion of the trial court, however, see Daubert

v. Merrell Dow Pharm., Inc., 509 U.S. 579, 592-93 (1993),

and we review it only for an abuse of discretion which

amounts to manifest error. See Boyd v. State Farm Ins. Cos.,

158 F.3d 326, 331 (Sth Cir. 1998) (“With respect to expert

testimony offered in the summary judgment context the trial

court has broad discretion to rule on the admissib’.ity of the

expert's evidence and its ruling must be sustained unless

manifestly erroneous”). We also review orders involving

discovery under a deferential abuse of discretion standard.

See Getserman v. MacDonald, 893 F.2d 787, 789 (Sth Cir.

1990); see also Hodges v. United States, 597 F.2d 1014, 1018

(Sth Cir. 1979).

Because this case involves the exclusion of expert

testimony for the purposes of a summary judgment

determination, the applicable standards of review overlap

somewhat. We will therefore review the district court’s

exclusion of plaintiffs’ expert’s evidence and all discovery-

related rulings for abuse of discretion, and then review de

novo the grant of summary judgment based on the evidence

properly before the district court. See General Elec. Co. v.

Joiner, 522 U.S. 136, 118 S.Ct. 512, 517 (1997) (“The

Court of Appeals Opinion - 1/5/00

question of admissibility of expert testimony is not. . . an

issue of fact, and is reviewable under the abuse of discretion

standard”); Curtis v. M & S Petroleum, Inc., 174 F.3d 661,

667-68 (Sth Cir. 1999) (“We must first review the trial

court’s evidentiary rulings under an abuse of discretion

standard. ... Then, with the record defined, we must review

de novo the order granting summary judgment as a matter of

law”).

B. Exclusion of plaintiffs’ expert evidence

Claims of disparate impact under Title VII must, of

necessity, rely heavily on statistical proof. See Watson v.

Fort Worth Bank and Trust, 487 U.S. 977, 987 (1988).

Plaintiffs in this case have relied almost exclusively on the

Statistical analysis contained in the affidavits and testimony of

their sole expert, Dr. Benz. On limited remand, the district

court explained that it found Dr. Benz’ analysis to be

unreliable and so did not consider it in reaching the summary

judgment ruling.’

Defendant contends that plaintiffs waived their

objections to the exclusion of their expert’s report when, after

remand, they did not specifically renew their objections in their

first supplemental brief. (Plaintiffs did renew their objections in

their supplemental reply brief after remand). While a party usually

Cannot raise an issue for the first time in a reply brief, see U.S. v.

Green, 46 F.3d 461, 465 n.3 (Sth Cir. 1995), plaintiffs are not

barred from pressing their objections regarding the exclusion of

their expert’s testimony here.

In their first brief on this appeal, plaintiffs presented a full

argument in favor of the admission of Dr. Benz’ testimony. We

retained jurisdiction of the case during the limited remand, and

10a

Court of Appeals Opinion - 1/5/00

The district court acted well within its discretion in

evaluating the reliability of Dr. Benz’ evidence at the

summary judgment stage: “In considering a Rule 56(c)

motion opposed by expert testimony, the trial court has broad

discretion to rule on the admissibility of the expert’s evidence

. . . [and] may inquire into the reliability and foundation of

any expert’s opinion. . . .” Washington v. Armstrong World

Indus., Inc., 839 F.2d 1121, 1123 (Sth Cir. 1988).

If the basis for an expert’s opinion is clearly

unreliable, the district court may disregard that opinion in

deciding whether a party has created a genuine issue of

material fact. See Berry v. Armstrong Rubber Co., 989 F.2d

822, 824 (Sth Cir. 1993), cert. denied sub nom, Cooper v.

Armstrong Rubber Co., 510 U.S. 1117 (1994): see also

Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S.

579, 596 (1993) (if “the trial court concludes that the scintilla

of [expert] evidence presented Supporting a position is

insufficient to allow a reasonable juror to conclude that the

position more likely than not is true, the court remains free

to. . . grant summary judgment”). Both the determination of

reliability itself and the factors taken into account are left to

the discretion of the district court consistent with its

gatekeeping function under Fed. R. Evid. 702. See Kumho

specifically allowed the parties to brief any “aspect of [the district

court’s] reasons not already addressed in their earlier briefs to this

court.” Since we retained jurisdiction and the Original briefs

carried over to this phase of the appeal, and because our order did

not require the parties to re-brief issues already covered in their

first submissions, we find that plaintiffs did not waive their

objections to the exclusion of their expert’s testimony and therefore

consider their arguments here.

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Tire Co., Ltd. v. Carmichael, 526 U.S. 137, 119 S.Ct. 1167,

1176 (1999).

In its order following remand, the district court

explains at length its reasons for rejecting Dr. Benz’ reports

and testimony for purposes of its summary judgment

determination. After a careful review both of the order and

the record, we cannot conclude that the district court abused

its discretion in excluding plaintiffs’ expert reports and

testimony.

The facts showing the insufficiency of Dr. Benz’

evidence range from particular miscalculations to his general

approach to the analysis. For example, in one table Dr. Benz

relied on in reaching his conclusions, columns representing

Hispanic males and all other employees should add up to

100%, but in seven out of twenty cases they do not. Some of

those errors could be attributable to rounding, but no

satisfactory explanation was given for totals as low as 25%,

16.67%, and 8.33%. Any reliance on that table was

necessarily misplaced.

On a broader level, Dr. Benz’ analysis fails to meet

the standards for admissibility of scientific evidence in that the

district court found that his methods were not in accord with

those of experts in his field. See Kumho Tire Co., 119 S.Ct.

at 1176 (“The objective of [the gatekeeper requirement] . . .

is to make certain that an expert . . . employs in the

courtroom the same level of intellectual rigor that

characterizes the practice of an expert in the relevant field”).

Dr. Benz began his analysis with the assumption that Kelly’s

promotion system discriminated against Hispanic males, an

indicator that he lacked the necessary objectivity to make his

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analyses credible. See Viterbo v. Dow Chemical Co., 826

F.2d 420, 423 n.2 (Sth Cir. 1987). Dr. Benz also stated that

discrimination was the “cause” of the disparities he had

observed, a statement which he later recanted as

“overzealous” since statistics can show only correlation and

not causation. See, e.g., Tagatz v. Marquette Univ., 861

F.2d 1040, 1044 (7th Cir. 1988).

In his depositions, he admitted to failing to consider

Other variables such as education and experience as

explanations for any observed discrepancy between promotion

rates and to not performing a multiple regression analysis.

See, e.g., Tagatz v. Marquette Univ., 861 F.2d 1040, 1045

(7th Cir. 1988) (holding that failure to control for other

explanatory variables makes an expert’s table “essentially

worthless”). Finally, Dr. Benz relied on the plaintiffs’

compilations of data, which gives rise to a “common-sense

skepticism” regarding the expert’s evaluation, see

Christophersen v. Allied-Signal Corp., 939 F.2d 1106, 1111

(Sth Cir. 1991) (en banc), cert. denied, 503 U.S. 912 (1992),

overruled on other grounds by Daubert v. Merrell Dow

Pharm., Inc., 509 U.S. 579, 587 n.5 (1993), and did not seek

to verify the information presented to him. See Sheats v.

Bowen, 318 F.Supp. 640, 644 (D. Del. 1970).

Taken cumulatively, the problems with Dr. Benz’

expert evidence indicate that his expert testimony could be

unreliable. Consistent with the role of the district court as

“gatekeeper” for scientific evidence, see General Elec. Co. v.

Joiner, 522 U.S. 136, 118 S.Ct. 512, 517 (1997), it was not

an abuse of discretion on the part of the district court to

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exclude Dr. Benz’ testimony and reports from the summary

judgment evidence.*

C. Sufficiency of plaintiffs’ other evidence

Having determined that it was not an abuse of

discretion for the district court to disregard Dr. Benz’ expert

reports and deposition testimony, we must now determine

whether plaintiffs had other sufficient evidence before the

court to survive defendant’s summary judgment motion.

A party is entitled to summary judgment if, when the

evidence is viewed in the light most favorable to the

nonmovant, there are no genuine issues of material fact in

dispute. See Frazier v. Garrison Indep. Sch. Dist., 980 F.2d

1514 (Sth Cir. 1993); Fed. R.Civ. P. 56(c). To withstand a

motion for summary judgment, the nonmoving party must

come forward with evidence to support each essential element

of its claims on which it will bear the burden of proof at trial.

See Celotex Corp. v. Catrett, 477 U.S. 317 (1986); National

Ass'n of Gov't Employees v. City Pub. Serv. Bd. of San

Antonio, 40 F.3d 698, 712 (Sth Cir. 1994). A dispute about

a material fact (i.e. one which might affect the outcome of the

trial) is “genuine” only “if the evidence is such that a

reasonable jury could return a verdict for the nonmoving

* We note that plaintiffs were not denied the opportunity

to improve their expert evidence. Dr. Benz filed a total of four

reports and was deposed three times. Plaintiffs had sufficient time

in which to substantiate their statistical claims, including a

reopening of discovery in order to allow Dr. Benz to submit

additional reports.

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party.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248

(1986).

With Dr. Benz’ evidence excluded, plaintiffs have

little else to rely On in attempting to overcome summary

judgment on either disparate impact or disparate treatment

claims. The primary evidence they cite to consists of

indicators of disparate impact gleaned from the defense

experts’ reports and two declarations filed by individual

plaintiffs Manuel Mufioz, Jr. and Michael Galvan. In_ its

order following remand, the district court rejected these latter

declarations as untimely filed and endorsed defendant’s

objections to them.

Plaintiffs rely on reports by defense experts Dr.

Wayne Cascio and William Ruch. Plaintiffs point out that

according to Dr. Cascio’s data, Hispanic males suffered a

disparate impact arising from defendant’s use of appraisal

scores to break ties between employees in the PPRS system

that was statistically significant for the year 1987. According

to plaintiffs, Dr. Cascio’s analysis also shows that Hispanic

males received fewer awards than would be expected at

Statistically significant levels for GS-11 in 1991 and GS-13 in

1987. However, such results do not create a genuine issue of

material fact regarding disparate impact or disparate treatment

either on their own or taken in combination with all other

evidence before the district court. The data points which

could suggest disparate impact are isolated in the record and ~

do not support the plaintiffs’ allegations of systemic

discrimination. See Johnson v. Uncle Ben’s, Inc., 965 F.2d

1363, 1367 (Sth Cir. 1992) (holding that prima facie case of

disparate impact requires a “systemic analysis of the

[disparate] effects of all promotional criteria for each rank”).

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Plaintiffs also rely on two declarations filed by class

members. The magistrate struck Manuel Mufoz, Jr.’s

affidavit filed in October of 1995 in support of plaintiffs’

second motion for partial summary judgment. The affidavit

was struck on three grounds. First, it was untimely, seeking

to introduce new statistical evidence after discovery had

already been reopened and closed once to allow plaintiffs to

submit additional expert evidence. Second, it used a

methodology (the “adverse impact barometer”) which the

magistrate and plaintiffs’ own expert found to be unreliable.

Third, since he is not an expert in statistics, Mr. Mufioz was

unqualified to advance the statistical evidence contained in the

affidavit.

We review a district court’s striking of an affidavit for

failure to comply with its scheduling order under a deferential

abuse of discretion standard. See Geiserman v. MacDonald,

893’ F.2d 787, 790 (Sth Cir. 1990) (“a trial court’s decision

to exclude evidence as a means of enforcing a pretrial order

‘must not be disturbed’ absent a clear abuse of discretion”)

[citation omitted]. It was not an abuse of discretion to strike

an affidavit seeking to introduce new statistical evidence after

an extension for the filing of such reports had already passed.

Because the Munoz affidavit was properly struck, it was not

before the district court and we do not consider it now as part

of plaintiffs’ summary judgment evidence. See Barrett v.

Atlantic Richfield Co., 95 F.3d 375, 382 (Sth Cir. 1996).

The other affidavit in issue was filed by Michael

Galvan, also a member of the plaintiff class. The affidavit

was filed well after the deadline for statistical reports, after

even the Mufioz affidavit. In his affidavit, Mr. Galvan states

that certain job series had a higher concentration of Hispanic

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employees and that certain other job series had a higher

concentration of non-Hispanic employees. He further states

that there were fewer promotion opportunities above the GS-

13 level in the job series with the higher concentration of

Hispanic employees. Two charts containing bar graphs

depicting promotion by grade for various job series are

attached.

Regardless of whether Mr. Galvan could be

determined competent to offer statistical evidence and whether

the lateness of the affidavit would bar its consideration, the

affidavit has deficiencies on its face that render it inadequate

as summary judgment evidence for the plaintiffs. First, Mr.

Galvan’s bar charts reflect the number of Hispanic employees

who received certain promotions, not the number of Hispanic

males in accordance with the class definition in this case. See

Lopez v. Laborers Int’l Union Local 18, 987 F.2d 1210,

1213-15 (Sth Cir. 1993) (describing the importance of using

the correct comparison pool in evaluating _ statistical

Significance of apparent disparate impact). Second, Mr.

Galvan does not state whether the series depicted in his bar

graphs represent the entire universe of promotions during the

relevant period, making statistical comparisons impossible.

Third, allegations regarding concentration of Hispanic

employees in certain job series relate more to hiring and

initial placement than to promotion decisions, the subject of

this lawsuit.

Mr. Galvan does not purport to show, nor is there

evidence elsewhere, that any concentration of Hispanic

employees in particular job series was due to discrimination

rather than differences in which jobs Hispanic employees

applied for or other race- and gender-neutral explanations for

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any perceived differences. See Watson v. Fort Worth Bank

and Trust, 487 U.S. 977, 992 (1988) (“It is completely

unrealistic to assume that unlawful discrimination is the sole

cause of people failing to gravitate to jobs and employers in

accord with the laws of chance”). Finally, Mr. Galvan does

not (and indeed could not, if he is not an expert) draw any

statistical inferences from the data he presents. The court is

unable to perform the necessary analyses for the plaintiffs,

particularly without adequate information regarding the

universe Of promotions included in the affidavit, the selection

criteria used in compiling the data, or other such vital

information. Upon reviewing the affidavit and other filings

in the case, we find that Mr. Galvan’s affidavit is not

sufficient to raise a genuine issue of material fact regarding

plaintiffs’ claims.

Taken as a whole, plaintiffs’ evidence properly before

the district court does not raise a genuine issue of material

fact as to either disparate impact or disparate treatment class-

wide claims.

D. Failure to identify alleged discriminatory nractices

with particularity

Defendant alleges that plaintiffs have failed to identify

the particular employment practices they challenge and that

instead, this case represents an attack on civilian employment

generally at Kelly. Plaintiffs counter that their attack is

adequately focused.

It is a matter of settled law that a disparate impact

class action is not the proper mechanism with which to attack

the cumulative effects of anemployer’s practices. See Pouncy

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Late Sek

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v. Prudential Ins: Co. of America, 668 F.2d 795, 800 (Sth

Cir. 1982), see alsa Andanvnn... Drenales & Lametson Ce.,

Inc., 26 F.3d 1277, 1284 (Sth Cir. 1994), cert. denied, 513

U.S. 1149(1995). Plaintiffs must provide evidence “isolating

and identifying the specific employment practices that are

allegedly responsible for any observed statistical disparities.”

Wards Cove Packing Co., Inc. v. Atonio, 490 U.S. 642, 109

S.Ct. 2115, 2124 (1989). In the present case, plaintiffs have

focused their challenge on a number of different aspects of the

promotion system at Kelly over the course of this litigation.

While defendant objects with justification to the

shifting focus of plaintiffs’ claims, part of the difficulty in this

case arises from the nature of civilian promotions at Kelly.

Plaintiffs cannot bring a suit challenging an entire

employment system; yet where a promotion system uses

tightly integrated and overlapping criteria, it may be difficult

as a practical matter for plaintiffs to isolate the particular step

responsible for observed discrimination.

In this case, it may be that the overlap between the

secret algorithm used by PPRS with individual subjective

decisions such as awards during service and selection among

a list of candidates would make it difficult to separate out the

> The complaint broadly alleges discriminatory impact

arising from the promotion system as a whole as well as a number

of its component parts. Mr. Galvan’s affidavit focuses on

concentration of Hispanics in dead-end job series. On this appeal,

plaintiffs contend that they have satisfied the particularity

requirement because they concentrate their attack on defendant’s

alleged use of experience/skill codes to exclude Hispanic males

from promotions.

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Statistical impact of each portion of the promotion decision.

However, plaintiffs have not provided an adequate statistical

study of civilian promotions at Kelly from which a court

could draw such conclusions. Because we find that plaintiffs

have failed to adduce sufficient evidehce to create a genuine

issue of material fact as to disparate impact or treatment, we

need not rule on whether they failed to plead with sufficient

specificity the particular aspects of the promotion system they

contend are responsible for the discrimination they allege.

B. Discovery limitations and their impact on plaintiffs’

ability to develop their case

Plaintiffs object to a number of discovery limitations

imposed by the magistrate judge and district court over the

course of this litigation. As a preliminary matter, we note

plaintiffs’ obligation to object contemporaneously to adverse

discovery orders. Without such objections, we can only

review for plain error. See Douglass v. United Svcs.

Automobile Ass'n, 79 F.3d 1415 (Sth Cir. 1996) (en banc).

District courts have considerable discretion in managing

discovery. See Geiserman v. MacDonald, 893 F.2d 787, 789

(Sth Cir. 1990); see also Fed. R.Civ. P. 16(b). That broad

discretion is particularly important in complex litigation such

as this where fairness to all litigants as well as judicial

economy require that the length and burdensomeness of

discovery and motions be limited. However, that discretion

is not unlimited, of course, and a reviewing, court may

reverse.

The primary discovery ruling plaintiffs object to is the

district court’s decision to deny access to the Air Force

algorithm used in the PPRS process. The district court

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ordered the algorithm sealed following an in camera review

of the computer program in which it determined that the

algorithm did not contain any evidence of discrimination on

the part of the Air Force. Plaintiffs did not object at the time

the algorithm was sealed, and it was eventually returned to the

Air Force. Due to the lack of contemporaneous objection, we

can only review for plain error. Under that standard, we find

that the district court was within its discretion in refusing

access to the algorithm.

It is unlikely that denial of access to the algorithm

unduly prejudiced plaintiffs’ claims. Defendant had already

supplied detailed information on the overall promotion system

and the inputs used by the PPRS automated system. Plaintiffs

also already knew what factors were used to break ties

between employees and what weight was assigned to each.

Denial of access to the algorithm arguably could make it more

difficult to identify with specificity the aspects of Kelly’s

promotion system responsible for any observed disparate

impact. However, plaintiffs’ claim does not fail on those

grounds and therefore a remand to the district court solely

because of its denial of access to the algorithm would be

inappropriate.

Plaintiffs also object to several other discovery orders

by the magistrate and district court. As noted above, we must

allow for the district court’s discretion in discovery matters,

especially in complex litigation. After a thorough and careful

review of the record and plaintiffs’ objections, we do not find

reversible error in any of the district court’s discovery orders.

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F. Survival of individual claims

Plaintiffs contend that even if this court upholds the

summary judgment as against the class action, the individual

plaintiffs’ claims should survive and should be remanded for

trial. The defense counters that this action was brought solely

as a Class action and that no individual claims were ever pled.

On the face of the complaint, no individual claims seem to be

alleged, and the bulk of litigation below seems to have been

premised on the existence of only a class claim.

However, this case has appeared in this court once

before and on that hearing the panel decision makes note of

individual claims in addition to the class claim on the face of

the complaint. See Munoz v. Aldridge, 894 F.2d 1489, 1491-

95 (Sth Cir. 1990) (remanding for further consideration class

and individual claims). Without full briefing from the parties

on this issue, our careful review of the record has not

revealed whether the individual claims referred to in the

previous opinion from this court were officially dropped from

the litigation.” In order to give due consideration to piaintiffs’

claims given this uncertainty, we examine the summary

judgment assuming that some form of individual claims have

been brought. We find, however, that any individua! claims

would also fail to survive summary judgment.

° The class was certified in this case after the first appeal.

The “individual claims” referred to in that opinion -- i.e. those of

the named plaintiffs -- could therefore be seen as collapsing into the

newly defined class claims to the degree that they were based on

the same allegations.

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In spite of the inclusion of several individual affidavits

in support of plaintiffs’ second motion for partial summary

judgment (advanced as evidence of class discrimination

according to the plaintiffs’ characterization), the only possible

individual claims would be those appearing in the complaint,

i.e. those of Jesus and Manuel Munoz, Jr. See, e.g., Coon v.

Georgia-Pac. Corp., 829 F.2d 1563 (11th Cir. 1987)

(limiting claims pursuant to Fed. R. Civ. P. 8(a) to those

stated in the complaint). It is well established that a class

representative cannot have interests adverse to the class, see

Fed. R. Civ. P. 23(a) (4), nor can individual liability be

adjudged before class liability is determined. See Bernard vy.

Gulf Oil Corp., 841 F.2d 547, 569 (Sth Cir 1988).

The preliminary question regarding any individual

claims is whether we have jurisdiction at all, since summary

judgment only as to the class claim would not dispose of the

entire case and therefore would not be an appealable final

order. Such is not the case, however. In his last motion for

summary judgment, defendant requested dismissal of

plaintiffs’ complaint as a whole, thus putting any individual

plaintiffs on notice that summary judgment could be pending

against them. The district court’s order dismissed “all

plaintiffs’ claims” with prejudice, disposing of any individual

claims along with the class claim. The summary judgment is

thus a final and appealable order and _ its propriety is

legitimately before us.

Any individual claims based on disparate impact would

fail both because they would be duplicative of class claims in

the same action and also because the same statistical proof

deemed inadequate for the class would likewise fail to

forestall summary judgment on individual claims. See

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Matsushita Elec. Indus. Co., Ltd. v. Epstein, 516 U.S. 367,

379 (1996) (defeat of class claim is binding on class members’

individual claims based on same allegations and facts).

As noted earlier, a prima facie case of individual

disparate treatment in promotion must show: that the plaintiff

is amember of a protected class, that he was qualified for and

applied for a promotion, and that the position remained open

and the employer continued to look for candidates with

similar qualifications. See McDonnell Douglas Corp. v.

Green, 411 U.S. 792, 802 (1973). The burden of persuasion

remains with the plaintiff, see Texas Dept. of Community

Affairs v. Burdine, 405 U.S. 248, 253 (1981), and a

reviewing court may look to all the evidence submitted to

determine whether defendani met its burden of producing a

legitimate reason for the employment action. See /n re Royale

Airlines, Inc., 98 F.3d 852, 856 (Sth Cir. 1996) (judgment

may be affirmed on any grounds in the record).

The named plaintiffs arguably made out a prima facie

case on their individual claims, since the complaint and later-

filed affidavits allege the required elements for disparate

treatment: that the named plaintiffs are members of a

protected class and that they were denied promotions.

However, all of the promoticn denials challenged by the class,

including those of the named plaintiffs, arose from the Merit

Promotion Plan at Kelly. The promotion plan itself, including

the PPRS algorithm which the district court determined was

not probative of any claims of discrimination, is the “reason”

for the denial of promotions in issue. Plaintiffs would have

to show, therefore, either that there is a genuine issue as to

whether the promotion plan_ indicates intentional

discrimination or that the promotions denied them were

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somehow capable of being isolated from the promotion system

and that purposeful discrimination was behind those

employment actions.

Nothing in the record adequately alleges or shows

purpose on the part of defendant. A complete failure of proof

as to One element requires summary judgment against the

entirety of the claim. See Celotex Corp. v. Catrett, 477 U.S.

317 (1986). Because plaintiffs have not shown any evidence

going to purpose, any individual claims based on disparate

treatment fail to withstand summary judgment.

We note that the failure of proof on the class claim

does not bar all individual class members from bringing their

Own suits, provided that they do not base their claims solely

On issues already adjudicated in this action and that they can

show individualized proof of discrimination. See Cooper vy.

Federal Reserve Bank of Richmond, 467 U.S. 867, 880

(1984).’

Plaintiffs suggest that if we find for defendant on the

Summary judgment issue,” we should remand the case for

decertification of the class on the grounds that the named plaintiffs

have failed to adequately represent the class. First, individual

claims based on particularized evidence of discrimination may still

be possible for some class members. Second, we cannot Say that

the named plaintiffs have failed to adequately represent the interests

of the class over fourteen years of federal litigation. Decertification

is not appropriate merely because the statistical evidence proved

inadequate to raise a genuine issue of material fact. The named

plaintiffs have zealously sought to vindicate what they see as

wrongs to the class and have not failed in their duty of

representation.

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Ill. Conclusion

This has been protracted and difficult litigation for

both sides. We fully appreciate the importance of this case,

both in terms of the resources dedicated to it and its impact on

the plaintiff class-members’ lives. After fourteen years in the

federal courts, the case comes before us now on a narrow

range of issues for which the scope of our review is narrowly

circumscribed. The discovery rulings and the exclusion of

plaintiffs’ key expert evidence were not an abuse of discretion

by the district court. Without statistical proof, dismissal of

the class claims was appropriate. Any individual claims have

not produced sufficient proof of disparate impact or of

purpose necessary to a disparate treatment claim to survive

summary judgment.

The summary judgment against all plaintiffs’ claims is

hereby AFFIRMED.

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APPENDIX B

IN THE UNITED STATES DISTRICT COURT

FOR THE WESTERN DISTRICT OF TEXAS

SAN ANTONIO DIVISION

[Filed January 13, 1999]

No. SA-85-CA-2991-FB

MANUEL MUNOZ, ET AL..

Plaintiffs,

Vv.

F. WHITTEN PETERS, Acting

Secretary of the United States

Department of the Air Force,

Defendant.

—— we ee Ne Set Se eee Nee Ne Ne

ORDER FOLLOWING REMAND

Pending since 1985, this case was transferred to the

undersigned in 1994. In 1995, cross-motions for summary

judgment were filed by the parties and a hearing was held.

United States Magistrate Judge Robert B. O’Connor found the

Statistical reports offered by plaintiffs’ only expert, Dr.

George Benz, wholly insufficient to Support plaintiffs’

allegations of racial discrimination. Plaintiffs, however, were

allowed to rely on two further expert reports submitted by Dr.

Benz. The Court reopened discovery to ailow the experts to

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be deposed regarding these additional reports and the

summary judgment motions were stricken subject to reurging.

After completion of the additional expert discovery, the

parties filed their second cross-motions for summary

judgment. “After careful consideration of the pending

motions, the pleadings on file and the entire record in this

matter, including the proceedings before United States District

Judge H. F. Garcia and Magistrate Judge O’Connor,”

plaintiffs’ motion for partial summary judgment was denied

and defendant’s motion for final summary judgment was

granted. Plaintiffs appealed the summary judgment order to

the United States Court of Appeals for the Fifth Circuit,

which remanded for an explanation of the rationale for

granting summary judgment.

Summary judgment was granted in favor of defendant

primarily because plaintiffs had wholly failed to produce

competent expert summary judgment evidence in support of

their challenge to the United States Air Force promotion

system for civilian employees and their claim _ for

$300,000,000 in damages. See Teamsters v. United States,

431 U.S. 324, 336 (1977) (plaintiffs cannot prove class-wide

discrimination without support of statistical evidence

submitted by competent expert). Specifically, the summary

judgment in favor of defendant is granted because the record

does not raise genuine issues of material fact and because the

Court agrees with the analyses and arguments presented: (1)

in the Order and Advisory of the Magistrate Judge (docket no.

403), which is incorporated by reference; (2) defendant's

second motion for summary judgment and accompanying brief

(docket no. 464), which is incorporated by reference; and (3)

defendant’s submission (contained in the Notice of Filing,

docket no 529), which is set forth below:

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District Court Order Following Remand - 1/13/99

“Plaintiffs, two male Mexican-American civilian Air

Force employees, alleged that they were each denied a

promotion at the Air Logistics Center (“ALC”) at Kelly Air

Force Base (“Kelly”) in San Antonio in 1982 in violation of

Title VII of the Civil Rights Act of 1964. Based upon these

two denials of promotions, plaintiffs brought this class action

Suit in this Court on behalf of all Mexican-American males

employed by Kelly Air Force Base. Plaintiffs challenged

Virtually every aspect of the Air Force promotion system for

civilian employees and sought declaratory and injunctive relief

and compensatory damages in the sum of $300 000,000.00.

A. The Merit Promotion Plan

Plaintiffs have challenged the Air Force’s automated

Personnel Placement and Referral System (“PPRS”). With

PPRS, it is no longer necessary for employees to apply for

promotions; PPRS automatically considers all individuals in

the specified area of consideration. PPRS is often described

as working like a funnel - all employees are fed into the top

of the funnel and, after the PPRS function is performed, the

most qualified individuals for the Position to be filled come

out the bottom of the funnel. The funneling is done via a

series of Progression Level Factors (“PLF”). Each PLF lists

the job skills necessary to perform the job to be filled, with

each subsequent PLF containing more specific job skills than

the preceding PLF. The PLFs are developed from a

Promotion Evaluation Pattern (“PEP”). PEPs are created, as

needed, by three-person teams and list the various necessary

job skills and their relative importance. All individuals who

reach the same PLF are considered tied; PPRS uses appraisal

scores, awards, and service computation date, in that order,

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to break these ties and rank the individuals. The end result of

the PPRS process is a roster which lists the candidates in rank

order. From the roster a Merit Promotion Certificate is

created from which the selecting official selects the

candidate(s) for promotion.’

B. Procedural Background

Plaintiffs filed this action in this court in November

1985. On February 8, 1989, this Court dismissed the

complaint holding that plaintiffs had not exhausted their

administrative remedies. Plaintiffs appealed and that decision

was reversed and remanded by the Court of Appeals in a

decision dated February 28, 1990. Munoz v. Aldridge, 894

F.2d 1489 (Sth Cir. 1990).

Thereafter, a class was certified on July 20, 1992, consisting

of:

All Hispanic male employees, GS-09 to GS-

14, at the SA-ALC, who on or after February

26, 1980 were eligible for promotion to

positions at grade GS-11 and above at SA-

ALC which are covered by Merit Promotion

Certificates produced by the Central Civilian

Personnel Office at SA-ALC, up to and

including the date of September 26, 1991.

' A Merit Promotion Certificate can be used to make

multiple selections. In such cases, more than the usual number of

candidates are included on the certificate.

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Discovery, including depositions of approximate! y 70 fact and

expert witnesses, was completed on June 30, 1994.

Cross-motions for summary judgment were filed by

the parties and a hearing was held on February 9, 1995. On

February 16, 1995, Magistrate Judge O’Connor issued a

Report and Recommendation stating that the statistical reports

offered by plaintiffs in Support of their contentions were

“wholly insufficient” and that plaintiffs’ reliance on those

reports was “ill-advised.” Order at 5, 6. However, because

of the length of time this matter had been pending, the Court

did not dismiss the action and allowed plaintiffs to rely on two

additional expert reports even though these reports were

submitted well after the filing deadline.* Id. at 6-7. The

Court also reopened discovery to allow the experts to be

deposed regarding these additional reports. Id. at 7.

After completion of the additional expert discovery,

the parties filed their second cross motions for summary

judgment. On July 28, 1997, this Court granted defendant's

motion for summary judgment and dismissed the action with

prejudice. Plaintiffs appealed this decision to the Fifth

The first additional report was submitted on September

22, 1994 as an attachment to plaintiffs’ opposition to defendant’s

motion for summary judgment. The second additional report was

submitted on December 16, 1994.

Apparently aware of the shortcomings of their expert’s

reports, plaintiffs tried to add a “rebuttal” expert witness to

supplant him and then tried to have their original expert removed

from the case with the baseless allegation that he was suffering

from a memory loss. Each of these motions was denied. Orders

of May 24, 1995 and August 16, 1995.

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Circuit. On October 7, 1998, the Fifth Circuit remanded the

case to this Court for the limited purpose of explaining the

rationale for the July 28, 1997 dismissal. This order provides

that explanation.

DECISION

Summary judgment is appropriate if “the pleadings,

depositions, answers to interrogatories and admissions on file,

together with the affidavits, if any, show that there is no

genuine issue as to any material fact and that the moving party

is entitled to a judgment as a matter of law.” Federal Rule of

Civil Procedure 56(c). “By its very terms, this standard

provides that the mere existence of some alleged factual

dispute between the parties will not defeat an otherwise

properly supported motion for summary judgment; the

requirement is that there be no genuine issue of material fact.”

Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247-48

(1986) (emphasis in original). Furthermore, “a complete

failure of proof concerning an essential element of the

nonmoving party’s case necessarily renders all other facts

immaterial.” Celotex Corp. v. Catrett, 477 U.S. 317, 323

(1986).

Plaintiffs assert that defendant’s promotion practices

have a disparate impact on the plaintiff class. A disparate

impact Title VII case addresses the situation when a facially

neutral employment practice has a significant adverse effect

on a protected group of individuals. Watson v. Fort Worth

Bank & Trust, 487 U.S. 977, 986 (1988) (plurality opinion);

Herbert v, Monsanto Co., 682 F.2d 1111, 1116 (Sth Cir.

1982). To make a prima facie showing of disparate impact,

plaintiffs must identify particular employment practices,

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demonstrate to the Court that those employment practices

Cause an adverse impact on the protected group, and show that

the disparities are “sufficiently substantial” to raise the

inference of causation. Watson, 487 U.S. at 994-95: Wards

Cove v. Atonio, 490 U-S. 642, 656-658 (1989). The

defendant can then rebut the prima facie case by showing that

the challenged employment practice is job related. Watson,

487 U.S. at 991; Wards Cove, 490 U.S. at 658-660; Herbert,

682 F.2d at 1116. If defendant successfully shows that an

employment practice is job related, then plaintiff must

demonstrate that there is an alternative to the challenged

practice which would not have a disparate impact while still

serving the employer’s legitimate business interests. Wards

Cove, 490 U.S. at 660-61; Herbert, 628 F.2d at 1116.

Because plaintiffs have brought their case as a class

action, they have an additional burden of proof. To prove a

prima facie case of class-wide discrimination, plaintiffs must

“prove more than the mere occurrence of isolated or

‘accidental’ or sporadic discriminatory acts. [They must]

establish by a preponderance of the evidence that racial

discrimination was the [defendant’s] standard operating

procedure -- the regular rather than the unusual practice.”

Teamsters v. United States, 431 U.S. 324, 336 (1977): Lewis

v. NLRB, 750 F.2d 1266, 1271, reh. denied, 756 F.2d 882

(Sth Cir. 1985). As the Supreme Court stated:

Proving isolated or sporadic discriminatory

acts by the employer is insufficient to establish

a prima facie case of a pattern or practice of

discrimination; rather it must be established by

a preponderance of the evidence that “racial

discrimination was the company’s standard

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operating procedure - the regular rather than

the unusual practice.” . . . The crucial

difference between an individual’s claim of

discrimination and a class action alleging a

general pattern or practice of discrimination is

manifest. The inquiry regarding an

individual's claim is the reason for a particular

employment decision, while “at the liability

stage of a pattern-or-practice trial the focus

often will not be on individual hiring

decisions, but on a pattern of discriminatory

decision making. ”

Cooper v. Federal Reserve Bank of Richmond, 467 U.S. 867,

875-76 (1984) quoting Teamsters, 431 U.S. at 336, 360 n.46.

Because a class action plaintiff must show a “systemwide

pattern or practice” of discriminatory actions, Teamsters, 431

U.S. at 336, “it is equally clear that a class plaintiff’s attempt

to prove the existence of a companywide policy, or even a

consistent practice within a given department, may fail even

though discrimination against one or two individuals has been

proved.” Cooper, 467 U.S. at 878.

Statistics, thus, are the main focus of a prima facie

class action case of disparate impact or disparate treatment.

Watson, 487 U.S. at 987 (“evidence in these ‘disparate

impact’ cases usually focuses on statistical disparities, rather

than specific incidents, and on competing explanations for

those disparities”); Teamsters, 431 U.S. at 339. See also

Shidaker_v. Carlin, 782 F.2d 746, 750 (7th Cir. 1986),

vacated on other grounds sub nom. Tisch v. Shidaker, 481

U.S. 1001 (1987); Regents of the University of Wisconsin

System, 728 F.2d 911, 914 (7th Cir. 1984). However,

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neither the Court nor defendant is “oblig[ated] to assume that

plaintiffs’ statistical evidence is reliable.” Watson, 487 U.S.

at 996. “‘If the employer discerns fallacies or Geficiencies in

the data offered by the plaintiff, he is free to adduce

countervailing evidence of his own.’” Id., quoting Dothard

v. Rawlinson, 433 U.S. 321, 331 (1977).

Thus, defendant is free to impeach the reliability of

Statistical evidence, offer rebutting evidence or disparage the

probative weight which the plaintiff's evidence should be

accorded. Watson, 487 U.S. at 996 citing Dothard, 433 U.S.

at 338-39 (Rehnquist, J. concurring in result and concurring

in part). See also Wilkins v. University of Houston, 654 F.2d

388, 395 (Sth Cir. 1981), cert. denied in relevant part, 459

U.S. 822 (1982) (“because of the significant role that statistics

can play in discrimination cases and of their inherently

slippery nature, it is imperative that they be used properly”).

“In considering a Rule 56(c) motion opposed by expert

testimony, the trial court has broad discretion to rule on the

admissibility of the expert's evidence and this ruling must be

sustained unless manifestly erroneous. The district court may

inquire into the reliability and foundation of any expert's

opinion to determine its admissibility.” Washington _v.

Armstrong World Industries, Inc., 839 F.2d 1 121, 1123 (Sth

Cir. 1988). “Rule 703 does not ‘make summary judgment

impossible whenever a party has produced an expert to

support its opinion.’ If the basis for the expert’s opinion is so

unreliable that no reasonable expert could base an opinion on

that data, the opinion may be excluded in the district court’s

determination of whether there is a genuine issue regarding an

essential element of the claim.” Berry v. Armstrong Rubber

Co., 989 F.2d 822, 824 (5th Cir. 1993), cert. denied sub

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nom, Cooper _v. Armstrong Rubber Co., 510 U.S. 1117

(1994), quoting Viterbo v. Dow Chemical Co. , 826 F.2d 420,

422 (Sth Cir. 1987). See also Daubert v. Merrill Dow

Pharmaceuticals, Inc., 509 U.S. 579, 596 (1993)(addressing

expert testimony, “in the event the trial court concludes that

the scintilla of evidence presented supporting a position is

insufficient to allow a reasonable juror to conclude that the

position more likely than not is true, the court remains free

to. . . grant summary judgment”). Therefore. if statistical

evidence is insufficient to prove a prima facie case of

disparate impact or disparate treatment, this Court can dismiss

the case pursuant to a motion for summary judgment. Lopez

v. Laborers Int'l. Union, 987 F.2d 1210 (Sth Cir. 1993).

“Faced with a proffer of expert scientific testimony, []

the trial judge must determine at the outset, pursuant to Rule

104(a), whether the expert is proposing to testify to (1)

scientific knowledge that (2) will assist the trier of fact to

understand or determine a fact in issue. This entails a

preliminary assessment of whether the reasoning or

methodology underlying the testimony is scientifically valid.”

Daubert, 509 U.S. at 592-93. “The subject of an expert's

testimony must be ‘scientific . . . knowledge.” The adjective

‘scientific’ implies a grounding in the methods and procedures

of science.” Id. at 589-90.

Most recently, in General Electric Co. v. Joiner, 118

S.Ct. 512 (1997), the Supreme Court emphasized these

functions of the district court in considering proffered expert

testimony. The Court explained that the Federal Rules of

Evidence “leave in place the ‘gatekeeper’ role of the trial

judge in screening such evidence.” 118 S.Ct. at 517. The

Court also rejected the Eleventh Circuit's rule imposing a

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“stringent” standard of review of a district court’s exclusion

of expert testimony, holding that, on a motion for summary

judgment, “the question of admissibility of expert testimony

isnot... an issue of fact, and is reviewed under the abuse

of discretion standard.” Id.

As the Fifth Circuit noted, plaintiffs have challenged

facially neutral employment procedures that allegedly disfavor

Hispanic males. Order of October 7, 1998, at 2. Plaintiffs

“have relied almost exclusively on the testimony and reports

by a single expert, Dr. George Benz, to support their claim.”

Id. Thus, if this Court determines that Dr. Benz’s analyses

are unreliable and/or without foundation, summary judgment

for defendant must be granted.’ Dr. Benz’s reports are

insufficient.

Despite having submitted four Separate reports,

plaintiffs’ expert has not offered sufficient evidence to support

a prima facie case. The shortcomings of Dr. Benz’s reports

are myriad and range from methodological problems to basic

mathematical errors. For instance, plaintiffs rely heavily, in

this Court as well as in their brief to the Fifth Circuit, on a

This case was brought from the start as a Class action.

Apart from one paragraph alleging that the two named plaintiffs

had been denied promotions (410), no individual promotion

decisions are even mentioned, much less challenged in the

complaint. The paragraph mentioning the named plaintiffs alleges

only that these individuals were harmed by the system-wide

“employment practices” listed in paragraph 7 of the Complaint and

does not allege individualized claims of discrimination. Thus, the

only issue before the Court is plaintiffs’ allegation of class-wide

discrimination and not individual claims of discrimination.

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chart labeled Table 5. See Appellant’s Brief to the Fifth

Circuit, filed November 18, 1997, at 9. This chart was

revised multiple times yet still contains obvious and basic

errors.

Table 5 sets forth the percentages of Hispanic males

versus all others at five grade levels and four steps of the

promotion process and purports to show that at each grade

level the percentage of Hispanic males decreases at each step

of the promotion process. Id. Each pair of percentages

reflects the total population of individuals at that step and

grade level and, therefore, should add up to 100%. However,

seven of the twenty pairs of percentages do not add up to

100%. Some are close - the percentages for GS-12 at the

X-118 pool add up to 99.70%. However, others are grossly

incorrect - the percentages for GS-15 at the X-118 pool total

58.33%, at Highly Qualified total 25%, at Referrals total

16.67% and at Promotions total only 8.33%. Plaintiffs’

expert had no explanation for these obvious discrepancies and

insisted that he could continue to rely on these numbers

despite the fact that they are obviously erroneous. Benz

Deposition 3 at 45, lines 19-25."

There are additional problems with Dr. Benz’s

Statistical analyzes. The law is clear that in order to show

* Dr. Benz has been deposed three times on his various

reports. His first deposition took place on June 22, 23, 28 and 29,

1994. References to this deposition will be noted as “Benz

Deposition 1.” His second deposition was taken on March 9-10,

1995 and will be referenced as “Benz Deposition 2.” His final

deposition was taken on August 16-17, 1995 and will be referenced

as “Benz Deposition 3.”

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discrimination, statistical analyses must consider the impact

of variables, such as education and experience, that might

account for statistical disparities. As the D.C. Circuit has

noted, “[a] plaintiff's statistical evidence must therefore focus

on eliminating this nondiscriminatory explanation by showing

disparities in treatment between individuals with comparable

qualifications for the position at issue.” Segar v. Smith, 738

F.2d 1249, 1274 (D.C. Cir. 1984), cert. denied sub nom..,

Meese v. Segar, 471 U.S. 1115 (1985). See also Anderson v.

Douglas & Lomason Co., Inc., 26 F.3d 1277, 1290 (Sth Cir.

1994), cert. denied, 513 U.S. 1149 (1995) (“plaintiffs made

the forbidden assumption that all D&L employees were

equally qualified for promotion”); Trevino v. Holly Sugar

Corp., 811 F.2d 896, 904 (Sth Cir. 1987).

Dr. Benz admitted at his deposition that he failed to

consider any variable other than ethnicity while admitting that

other variables, such as education and experience, could

account for the statistical disparities. Benz Deposition 2 at

145, lines 15-23; Benz Deposition 2 at 144, lines 16-25; 145,

lines 1-5. See also id. at 144, lines 6-9. In addition, Dr.

Benz failed to perform a regression analysis, which would

allow the consideration of multiple factors, preferring instead

to perform a z-test which allows consideration of only a single

variable. Benz Deposition 3 at 144, lines 15-25. Defendant’s

expert, Dr. Casei, testified as to the unsuitability of using the

z-test for such an analysis. See Cascio April 1994 Report at

15-16; Cascio September 1995 Report at 2. More

importantly, the Fifth Circuit has identified multiple

regression analyses as “the best, if not the only, means of

proving classwide discrimination . . . where a number of

factors operate simultaneously.” Wilkins, 654 F.2d at 403.

See also Segar, 738 F.2d at 1274 ( “regressions seek to prove

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Disirici Couri Order Following Remand - 1/13/99

race discrimination by testing possible alternative explanations

for an observed disparity”). Even Dr. Benz admits that a

multivariate analysis is better suited to examine a situation in

which multiple variables are considered, stating that “[iJf

you're trying to analyze simultaneously a whole bunch of

factors at the same time and you don’t bundle them up into

one, then obviously multivariant analysis would be a better

approach.” Benz Deposition | at 117, lines 13-16. See also

Benz Deposition 2 at 129, lines 14-22. Dr. Benz’s failure to

perform a regression analysis alone is sufficient Grounds to

reject his reports as unreliable. See Tagatz v. Marquette

University, 861 F.2d 1040, 1045 (7th Cir. 1988) (holding that

a failure to control for other variables made the expert’s table

“essentially worthless”).

There are additional methodological problems with Dr.

Benz’s reports. Dr. Benz freely admitted that he started his

analysis with the assumption that there was discrimination at

Kelly Air Force Base. Benz Deposition | at 138, lines 16-25.

As the Fifth Circuit has stated, “[aJn expert who forms as

opinion before he begins his research is biased and lacking in

objectivity.” Viterbo v. Dow Chemical Co., 826 F.2d 420,

423 n.2. (Sth Cir. 1987). Dr. Benz’s admission of a

preconceived bias, combined with his reliance on the invalid

z-test, is further compounded by his statements that

discrimination was the “cause” of the statistical disparities.

As Dr. Benz admitted in his deposition, statistics cannot show

causation and his statements to the contrary were

“overzealous.” Benz Deposition 1 at 127, lines 19-25; 128,

line 1; Benz Deposition 3 at 218, lines 17-22; Benz

Deposition 2 at 143, line 25; 144, lines 1-5. See also id. at

236, lines 4-13. See also Tagatz, 861 F.2d 1044

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(“Correlation is not Causation”): September 1995 Cascio

Report ¢ 5.

Furthermore, Dr. Benz Stated several strong

conclusions finding discrimination in his reports that he was

unable to support and retracted at his depositions. Benz

Deposition 2 at 195, lines 15-21; 199, lines 19-25: 200. lines

1-4, 11-16, 20-25; 201, lines 1-3; 227, line 25; 228, lines

1-8. See also Benz Deposition 3 at 191, lines 2-5. Dr. Benz

also makes his conclusions seem more compelling than they

are by ignoring evidence which does not support his

conclusions. Benz Deposition 2 at 187, lines 22-25; 188,

lines 1-10. See also Benz Deposition 3 at 265-27].

An additional problem with Dr. Benz’s analyses is that

he relied on plaintiffs to collate and provide the data upon

which he based his opinions. Rule 703 mandates that an

expert base his opinion on reliable data. Barrel of Fun, Inc.

v. State Farm Fire & Cas. Co., 739 F.2d 1028, 1033 (Sth

Cir. 1984). A “common-sense Skepticism” is warranted when

plaintiffs are the source of information upon which the expert

relied. Christophersen _v. Allied-Signal Corp., 939 F.2d

1106, 1111 (Sth Cir. 1991), cert, denied, 503 U.S. 912

(1992); Viterbo, 826 F.2d at 423. See also Cascio Report

{6. This problem was compounded by the fact that plaintiff’s

record keeping was demonstrably inaccurate. In One year and

grade combination examined during defendant’s expert’s

deposition, plaintiffs were missing 83 of 232 promotion

records. Cascio Deposition, Day 3, pp. 75-77. Review of

the original records showed that these records had been

produced to the plaintiffs. Cascio Deposition, Day 3, pp.

99-302; see i.e. Cascio Deposition, Day 3, at 144-45, 148.

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Dr. Benz exacerbated the problem of having plaintiffs

generate the statistics upon which he relied by failing do

perform spot checks to ensure that the information was being

compiled properly. See Benz Deposition 2 at 28, lines 6-17.

This is wholly unacceptable scientific practice in his field.

See Sheats v. Bowen, 318 F. Supp 640, 644 (D. Del 1970)

(“[i]n order for an expert to base his opinion on a study it is

necessary that he be able to testify from his own knowledge

as to the nature and extent of the source from which statistics

were gathered”). Dr. Benz also compounded this problem by

neither learning nor examining the decisional rules that were

used by the plaintiffs in generating the data. See Benz

Deposition 3 at 118, lines 5-11. Dr. Benz also violated

scientific practice by merely “eyeballing” numbers instead of

performing any systematic analysis. Benz Deposition 2 at

288, lines 3-14. See also, 309, lines 7-25; 310, lines 1-14.

See also Benz Deposition 3 at 239, lines 21-25; 240, lines

1-11; 243, lines 3-6; 245, lines 18-25; 246, lines 1-7. In

addition, Dr. Benz utilized a technique that resulted in

substantial “double counting” of individuals, thereby making

his analyses incorrect. Benz Deposition 2 at 82, lines 19-25;

83, line 1. See also, Benz Deposition 3 at 115, lines 23-25;

116, line 1.

Finally, Dr. Benz’s reports are fatally flawed because

of a fundamental misunderstanding of what Title VII

prohibits. Dr. Benz testified that there was discrimination

whenever Hispanics failed to reach parity with their

representation in the workplace. See Benz Deposition 2 at

146, lines 5-22. However, a failure to reach parity is

irrelevant to the question of discrimination since affirmative

action is expressly not required by Title VII:

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[NJothing contained in Title VII “shall be

interpreted to require any employer . . . to

grant preferential treatment . . . to any group

because of the race... . of such. . . group on

account of” a de facto racial imbalance in the

employers work force.

Steelworkers _v. Weber, 443 U.S. 193, 205-06 (1979)

(emphasis in original). See also Teamsters, 431 U.S. at 340

(“Title VII imposes no requirement that a work force mirror

the general population”); 29 C.F.R. § 1614.601(e) (“An

agency shall not establish a quota for the employment of

persons on the basis of race, color, religion, sex or national

origin”). As the Supreme Court has very clearly stated,

“[p]referential treatment and the use of quotas by public

employers subject to Title VII can violate the Constitution,

and it has long been recognized that legal rules leaving any

class of employers with ‘little choice’ but to adopt such

measures would be ‘far from the intent of Title VII.’”

Watson 487 U.S. at 993 (quoting Albemarle Paper Co. v.

Moody, 422 U.S. 405, 449 (1975) and citing Wygant v.

Jackson Bd. of Education, 476 U.S. 267 (1986)). Because

Dr. Benz’s studies address only whether Hispanic males have

achieved parity in promotion events and not whether there has

been discrimination, his reports are of no assistance to the

Court.

The substantial flaws in Dr. Benz’s reports make his

reports wholly inadequate to support a prima facie case of

disparate impact or disparate treatment. Because plaintiffs

relied almost exclusively on Dr. Benz’s analysis to make their

prima facie case, their complaint must be dismissed.

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Defendant's Experts’ Reports

Plaintiffs have asserted that even if Dr. Benz’s reports

are inadequate to show a prima facie case, the complaint

should not be dismissed because defendant’s experts’ reports

demonstrate disparate impact. See e.g. Plaintiffs’

Memorandum in Support of Motion for Partial Summary

Judgement at 15-16. In fact, the affirmative statistical

evidence provided by defendant demonstrates that there was

no discrimination against Hispanic males at Kelly Air Force

Base. Defendant produced two expert witnesses, each of

whom examined a different portion of the promotion process

at Kelly, and whose reports found no discrimination at Kelly.

Both Dr. Wayne Cascio and William Ruch are well-qualified

experts who performed studies which followed accepted

scientific methodology in examining the promotion process as

implemented at Kelly.

Dr. Wayne Cascio presented three analyses showing

that there was no discrimination at Kelly. First, he examined

the employment practices challenged by plaintiffs and showed

that Hispanic males are not denied those employment benefits

to a Statistically significant degree when compared to their

representation in the qualified labor pool. Dr. Cascio defined

the qualified labor pool as the individuals in the pay grades

and job series from which candidates are eligible for

promotion. April 1994 Cascio Report at 4. This is the

appropriate pool in a promotion case. See Wards Cove, 490

U.S. at 650-652; Hazelwood School District v. United States,

433 U.S. 299, 308 (1977); Herbert, 682 F.2d at 1123. Of the

644 z-tests produced by this analysis, only 37 of the 644

z-tests produced results which were statistically significant.

Of those 37 statistically significant results, 35 favored

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Hispanic males and only 2 disfavored Hispanic males. Id. at

30.

Dr. Cascio also performed a regression analysis to

examine plaintiffs’ allegation that appraisal scores and award

points prevented Hispanic males from being selected for

promotion. None of the 73 appraisal scores analyses showed

any Statistically significant results. Id. at 6. One of the 56

award points analyses was Statistically significant in favor of

non-Hispanic males; however, by chance alone you would

expect one statistically significant result. Id.

Finally, Dr. Cascio did a regression analysis to

examine the bottom line question raised by this litigation,

whether Hispanic males received the number of promotions

one would expect given their representation in the qualified

pool. In order to mirror the PPRS process as it works at

Kelly, the comparison pool used was everyone at the lowest

PLF from which any individual, even if it was only one

person, made the certificate. Cascio Deposition IV at 229-30.

This pool was then compared to the pool of individuals who

were selected for promotion. April Cascio Report at 31. Of

the 12 yearly analyses, Only one result was Statistically

Significant and the result disfavored Hispanic males. Of the

60 year-by-grade analyses, only one result was Statistically

Significant and also disfavored Hispanic males. Neither of

these results supports a finding of systematic discrimination.

William Ruch’s analysis addressed _ plaintiffs’

complaint that the PEP process was being manipulated. Mr.

Ruch examined the PEPs for 14 series and grade combinations

and his job validation analysis showed that the skills being

requested via the PEP and the weights given those skills were

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strongly correlated to the requirements of the job being filled.

Ruch Report at 11 and attached tables.°

Plaintiffs’ Failure to Identify Promotion Practices

Defendant’s motion for summary judgment must also

be granted because plaintiffs failed to identify the promotion

practices they claim caused the alleged discrimination. The

Supreme Court has held that in order to make a prima facie

case of disparate impact discrimination, a plaintiff must

identify the specific promotion practices which are causing the

statistical disparity. See Watson, 487 U.S. at 994-95; Wards

Cove, 490 U.S. at 656-658. Thus, as the Fifth Circuit has

held, “the disparate impact model of proof in an employment

discrimination case is not [] the appropriate vehicle from

which to launch a wide-ranging attack on the cumulative

effect of a company’s employment practices.” Pouncy v.

Prudential Ins. Co. of America, 668 F.2d 795 (Sth Cir. 1982)

cited with approval in Anderson, 26 F.3d at 1284. In the

instant case, plaintiffs are using the disparate impact model to

make exactly the type of wide-ranging attack prohibited by

these cases. An example of this can be seen in plaintiffs’

inclusion of the Career Enhancement Program in their

complaint. Even though the class plaintiffs requested was

limited to promotions covered by certificates produced by the

Civilian Personnel office at Kelly Air Force Base, plaintiffs

sought to challenge Career Enhancement Program (“CEP”)

* Ruch’s reports were uncontradicted since plaintiffs

provided no evidence to support their allegation that PEPs were

being manipulated. Indeed, plaintiffs never identified a single PEP

that they allege had been manipulated.

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promotions which are produced at Randolph Air Force Base

and not subject to the allegedly wrongful practices challenged

by plaintiffs.° Thus, not only did plaintiffs fail to identify

specific promotion practices at Kelly, but failed even to limit

their case to the personnel office named in their complaint and

request for class certification.

Plaintiffs and their expert’s failure to identify specific

promotion practices provides an independent ground for the

dismissal of their complaint.”

CONCLUSION

Plaintiffs also sought to rely on untimely filed non-

expert affidavits of Manuel Mufioz, Jr. and Michael Galvan.

The reliance is misplaced for the reasons stated in Defendant’s

Response to Plaintiff's Objections to Defendant's Proposed

Order (docket no. 534).

Plaintiffs have failed to provide sufficient and reliable

evidence to support a prima facie case of either disparate

impact or disparate treatment. Defendant’s motion for

summary judgment is granted.

ORDERED, SIGNED and ENTERED this 13th day of

January, 1999.

In addition, defendant’s expert showed that Hispanic

males receive more CEP promotions than expected given their

representation in the poo! of CEP registrants. June 1994 Cascio

Report at 8.

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/s/

FRED BIERY

UNITED STATES DISTRICT JUDGE

48a

APPENDIX C

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

[Filed October 7, 1998]

No. 97-50736

JESUS G. MUNOZ:

MANUEL MUNOZ, JR.,

Plaintiffs-Appellants,

)

VERNE ORR; ET AL., )

Defendants, )

)

F. WHITTEN PETERS. )

SECRETARY OF U.S. )

DEPARTMENT OF THE )

)

AIR FORCE,

Defendant-Appellee.

Appeal from the United States District Court

for the Western District of Texas, San Antonio

ORDER

Before JOLLY, BARKSDALE, and BENAVIDES, Circuit

Judges.

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Court of Appeals Order - 10/7/98

PER CURIAM:”

The plaintiffs in a Title VII class action filed on behalf

of Hispanic male civilian employees at the Kelly Air Force

Base in San Antonio appeal a summary judgment order

dismissing all of their claims. Based upon the district court's

failure to state its reasons for granting summary judgment, we

remand to the district court for the limited purpose of

explaining the rationale for its decision.

This suit, now almost thirteen years old, involves a

complex statistical claim alleging that facially neutral Air

Force employment procedures illegally disfavor the promotion

of Hispanic males in civilian positions. The appellants have

relied almost exclusively upon testimony and reports by a

single expert, Dr. George Benz, to support their claim. The

Air Force has sought to discredit Dr. Benz's analysis by

challenging its reliability and countering it with statistical

evidence from other experts.

After the close of discovery, the Air Force moved for

summary judgment on all of the appellants’ claims, providing

three bases upon which its motion could be granted. First,

the Air Force argued that the court should rule the evidence

from Dr. Benz inadequate to support a prima facie case of

discrimination and thus find there was no genuine issue as to

a material fact to take to trial. Second, the Air Force argued

* Pursuant to STH CIR. R. 47.5, the Court has determined

that this opinion should not be published and is not precedent

except under the limited circumstances set forth in STH CIR. R.

47.5.4.

50a

Court of Appeals Order - 10/7/98

that the court should exclude the evidence from Dr. Benz as

inadmissible under the reliability standards articulated in

v. Merrell Dow Pharmaceuticals Inc., 509 U.S. 579

(1993), leaving the appellants without any evidence in support

of their claim. Third, the Air Force argued that the district

court should, relying upon dicta in earlier decisions of this

court that have suggested the possibility of a different

summary judgment standard in nonjury cases, grant summary

judgment based upon its own factual finding that Dr. Benz’s

testimony would not be convincing at trial. In its order dated

July 28, 1997, the district court granted the Air Force’s

motion without providing any discussion of which of these

three reasons, or any other reasons, it had adopted in reaching

its decision.

Although Fed. R.Civ.P. 56 does not expressly require

that a grant of summary judgment be supported with a

Statement of reasons, the district court’s failure to provide any

reasons leaves us “unable to perform our coordinate role of

reviewing the decision of the district court because we cannot

tell whether the court properly evaluated all of the potentially

relevant evidence.” Wildbur v. Arco Chemical Co., 974

F.2d 631, 645 (Sth Cir. 1992). “‘When... we have no basis

for a district court’s decision, because its reasoning is vague

or simply left unsaid, there is little opportunity for effective

review. In such cases, we have not hesitated to remand the

case for an illumination of the court’s analysis through some

formal or informal statement of reasons.’” MclInrow v.

Harris County, 878 F.2d 835, 836 (5th Cir. 1989) (quoting

Myers v. Gulf Oil Corp., 731 F.2d 281, 284 (Sth Cir. 1984));

see also Davis v. Bayless, 70 F.3d 367, 376 (Sth Cir. 1995)

(“[W]e have required that the district court explain its reasons

Sla

Court of Appeals Order - 10/7/98

in sufficient detail to allow this Court to determine whether

the district court applied the proper legal rule.”).

The Air Force argues that we need not remand to the

district court in this instance because it was “utterly apparent”

from the context of the ruling that the basis for the district

court’s order was the exclusion of Dr. Benz’s testimony.

Because we have absolutely no indication from the district

court that it intended to exclude Dr. Benz’s testimony and

because it was only one of the possible grounds for summary

judgment proffered by the Air Force in its brief, we do not

find the district court’s reasoning so apparent.

For the foregoing reasons, we retain jurisdiction over

this case but make a limited remand to the district court for

the sole purpose of providing us with a statement of reasons

for its grant of summary judgment. Upon being provided

with those reasons, we will consider any requests by the

parties to file supplemental briefs addressing any aspect of

those reasons not already addressed in their earlier briefs to

this court.

REMANDED.

52a

APPENDIX D

IN THE UNITED STATES DISTRICT COURT

FOR THE WESTERN DISTRICT OF TEXAS

SAN ANTONIO DIVISION

[Filed July 28, 1997]

No. SA-85-CA-2991-FB

MANUEL MUNOZ, ET AL..

Plaintiffs,

F. WHITTEN PETERS, Acting

Secretary of the United States

Department of the Air Force,

Defendant.

ee eet ee ae Sa Nae al Sead eee es

ORDER GRANTING FINAL SUMMARY JUDGMENT

IN FAVOR OF DEFENDANT

Before the Court are plaintiff's motion for partial

summary judgment (docket no. 240), plaintiff's motion for

partial summary judgment (docket no. 461), defendant's

motion for final summary judgment (docket no. 464) and

plaintiff's motion for reconsideration of this Court's denial of

their motion for judgment and/or for evidence preclusion

(docket no. 500). After careful consideration of the pending

motions, the pleadings on file, and the entire record in this

53a

District Court Order and Judgment - 7/28/97

matter, including the proceedings before United States District

Judge H.F. Garcia and United States Magistrate Judge Robert

B. O’Connor, the following Orders are entered:

IT IS ORDERED that plaintiff's motion for partial

summary judgment (docket no. 240), plaintiffs’ motion for

partial summary judgment (docket no. 461) and plaintiffs’

motion for reconsideration (docket no. 500) are DENIED;

IT IS FURTHER ORDERED that based on

defendant's summary judgment evidence, plaintiffs’ response,

the pleadings on file and the entire record, defendant’s motion

for final summary judgment (docket no. 464) is GRANTED

such that summary judgment is entered in favor of defendant

and against plaintiffs on all plaintiffs’ claims. The above-

styled and numbered cause is DISMISSED WITH

PREJUDICE. Each party is to bear its respective costs.

Motions pending with the Court, if any, are denied.

ORDERED, SIGNED and ENTERED this 28" day of

July, 1997.

/s/

FRED BIERY

UNITED STATES DISTRICT JUDGE

District Court Order and Judginent - 7/28/97

IN THE UNITED STATES DISTRICT COURT

FOR THE WESTERN DISTRICT OF TEXAS

SAN ANTONIO DIVISION

[Filed July 28, 1997]

No. SA-85-CA-2991-FB

MANUEL MUNOZ, ET AL..

Plaintiffs,

¥.

F. WHITTEN PETERS, Acting

Secretary of the United States

Department of the Air Force,

Defendant.

ee ee ee eae Naa: Se Sa Sean ek ee

JUDGMENT

The Court considered the Judgment to be entered in

the above-styled and numbered cause. Pursuant to the Order

Granting Final Summary Judgment in favor of Defendant

entered this date,

IT IS ORDERED, ADJUDGED and DECREED that

defendant’s motion for final summary judgment (docket no.

464) is GRANTED such that summary judgment is entered in

favor of defendant and against plaintiffs on all plaintiffs’

claims. The above-styled and numbered cause is DISMISSED

WITH PREJUDICE. Each party is to bear its respective

costs. Motions pending with the Court, if any, are denied.

55a

District Court Order and Judgment - 7/28/97

ORDERED, SIGNED and ENTERED this 28th day of

July, 1997.

/s/

FRED BIERY

UNITED STATES DISTRICT JUDGE

56a

APPENDIX E

VALIDATION ANALYSIS OF PROMOTIONS

AT KELLY AFB (10 JAN 94)

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