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CHEWNING v. SCHLESINGER

April 23, 1979

June CHEWNING et al., Plaintiffs,
v.
James R. SCHLESINGER, Defendant



The opinion of the court was delivered by: FLANNERY

MEMORANDUM

On February 27, 1976, the plaintiff June Chewning filed a class action complaint against the Atomic Energy Commission ("AEC"), alleging a pattern and practice of sex discrimination prohibited by Section 717 of Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. ยง 2000e Et seq. (1976). The court subsequently certified a class to include all women employed in "professional" positions between January 19, 1975 and September 30, 1977 at the Energy Research and Development Administration ("ERDA"), AEC's successor agency, in Washington, D.C. and Germantown, Maryland. After extensive discovery, the parties entered into a consent order, which was approved by the court and entered on its docket on August 23, 1978. In that order, the parties agreed that

 
The named plaintiffs and the class they now represent are prevailing parties for the purposes of the class allegations, to wit: a statistical disparity in salary accorded professional women at ERDA Headquarters, including statistical disparities in starting salary and salary advancement.

 Consent Order, P 1. The parties also agreed "that the named plaintiffs and class members should submit to a claims procedure before a master to be appointed by the Court," Id., P 2, but were unable to agree "as to the appropriate standards and procedures for determining individual relief," Id., P 3.

 Pursuant to an order of the court, the parties have submitted briefs on various questions concerning the procedural and substantive standards to be applied by the court-appointed master in resolving the individual relief aspects of this case. Those questions relate to the manner in which individual claims for back pay and other appropriate individual relief should be determined by the master; the issue whether the court may approve a back pay formula that takes into account the effects of discrimination occurring before the 1972 amendments to Title VII; and the issue whether "front pay" is available in this case. Although the court did not request a briefing on the question whether interest may be paid on back pay awards, the plaintiffs have provided for interest in their draft protocol for the referral of the relief aspects of this case to the master. The court, therefore, also will consider the issue of interest in its memorandum.

 I. Principles Governing Back Pay Relief

 The principal objective of back pay is to make persons whole for injuries suffered because of unlawful employment discrimination. Albemarle Paper Co. v. Moody, 422 U.S. 405, 417-22, 95 S. Ct. 2362, 45 L. Ed. 2d 280 (1975). The parties agree that the court should look to the Supreme Court's decision in International Brotherhood of Teamsters v. United States, 431 U.S. 324, 97 S. Ct. 1843, 52 L. Ed. 2d 396 (1977), for guidance in fashioning standards for the award of back pay to the class members here. The plaintiffs and the defendant differ sharply, however, on two issues that bear directly on the application of Teamsters to the present case. First, the defendant contests the plaintiffs' assertion that the consent order should be construed as an admission by the agency that each individual plaintiff was a victim of discrimination. Second, the defendant disputes the plaintiffs' description of ERDA's employment practices as they relate to the promotion of professionals.

 In the Teamsters case, the Supreme Court clarified the procedures that should be used by a District Court in determining the scope of individual relief after the establishment of a pattern or practice of discrimination as to a particular class. The Government in Teamsters had used statistical evidence and testimony regarding specific instances of discrimination to establish that the defendant company and defendant union had engaged in a pattern of racially premised hiring practices. In articulating the standards and procedures to be used in determining the entitlement to relief of individual members of the plaintiff class, the Court rejected the defendants' contention that "if the Government has not, in the course of proving a pattern or practice, already brought forth specific evidence that each individual was discriminatorily denied an employment opportunity, it must carry that burden at the second, "remedial' stage of trial." Id. at 361, 97 S. Ct. at 1868. The Court went on to say:

 
The proof of the pattern or practice supports an inference that any particular employment decision, during the period in which the discriminatory policy was in force, was made in pursuit of that policy. The Government need only show that an alleged individual discriminatee unsuccessfully applied for a job and therefore was a potential victim of the proved discrimination. As in Franks ( V. Bowman Transportation Co., 424 U.S. 747, 96 S. Ct. 1251, 47 L. Ed. 2d 444 (1976)), the burden then rests on the employer to demonstrate that the individual applicant was denied an employment opportunity for lawful reasons. (footnote and citation omitted)

 Id. at 362, 97 S. Ct. at 1868 (emphasis added). Thus, although the Court clearly stated that individual class members do not have to prove the discrimination all over again, it set forth a minimum showing that each class member must make in initiating a claim for relief: the member must show that there was a job and that the member applied for it. There are a number of reported decisions in which lower courts have followed the Teamsters standard. See, e.g., Sledge v. J. P. Stevens & Co., 585 F.2d 625, 637 (4th Cir. 1978); Presseisen v. Swarthmore College, 442 F. Supp. 593, 600-01 (E.D.Pa.1977).

 With respect to the narrow issue now before the court, the present case is distinguishable from Teamsters only in that the defendant here has conceded the class allegations rather than putting the plaintiffs to their proof at trial. In the court's view, therefore, there is no basis in the present record for the plaintiffs' argument that "(e)ach plaintiff and class member (should be) deemed to have automatically established a Prima facie case, and (that) defendant must provide backpay" to each member unless the defendant can establish by "clear and convincing evidence" that a particular plaintiff would not have been promoted even in the absence of discrimination. Consent Order, P 3a. Although the defendant has admitted to "statistical disparities in starting salary and salary advancement," Id., P 1, between men and women professionals at ERDA Headquarters, it has not admitted that every professional woman was a victim of discrimination. Consequently, the court sees no justification for relieving the women class members of the requirements of proof imposed upon them by the Teamsters decision.

 All the foregoing notwithstanding, however, the court cannot accede to the defendant's suggestion that it must require each class member to make "a clear showing of intentional discrimination based on a McDonnell-Douglas type standard." *fn1" Under that familiar test, set forth by the Supreme Court in McDonnell-Douglas Corp. v. Green, 411 U.S. 792, 93 S. Ct. 1817, 36 L. Ed. 2d 668 (1973), a plaintiff may establish a Prima facie case of discrimination by proving:

 Id. at 802, 93 S. Ct. at 1824. Requiring the class members here to make a McDonnell-Douglas prima facie showing to establish their entitlement to back pay relief effectively would be to require each plaintiff to bring "forth specific evidence that each . . . was discriminatorily denied an employment opportunity," Teamsters, supra, 431 U.S. at 361, 97 S. Ct. at 1868, a burden the Supreme Court expressly said a trial court should not impose upon any class member. Id. The showing required of class members by the Teamsters decision at the relief stage of trial is more limited than the showing needed to establish a Prima facie case under McDonnell-Douglas ; as noted above, under Teamsters the class member need only identify the employment opportunity she was denied and show that she applied for it. Id. at 362, 97 S. Ct. 1843. Receding somewhat from its original position, the defendant "admits that this is not the precise, four-step approach of McDonnell-Douglas . . . .," *fn2" but continues to insist that each class member also must show that she was qualified for the particular position. This additional showing is not mandated by the language of Teamsters and, to the extent that it rounds out the McDonnell-Douglas test, it is inconsistent with the Court's holding that, if the plaintiffs in a class action are successful in establishing a pattern or practice of discrimination, the trial court may infer that any individual hiring decision was made in furtherance of the discriminatory policy. Id. Neither the Court of Appeals for the Fourth Circuit nor the Court of Appeals for the Sixth Circuit in cases cited by the defendant imposed such a requirement ...


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