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MCKENZIE v. SAYLOR

January 30, 1981

Alfred U. McKENZIE et al., Plaintiffs,
v.
Samuel SAYLOR, Defendant



The opinion of the court was delivered by: PARKER

MEMORANDUM OPINION

In January 1977 this Court ruled in a class action claim brought by three black employees of the United States Government Printing Office (GPO) that on the basis of the undisputed facts there was clear and convincing evidence that black workers in the Offset Press Section (OPS) of the Government Printing Office were the victims of racial discrimination in that they have been denied promotion opportunities to which they were otherwise entitled. McKenzie v. McCormick, 425 F. Supp. 137 (D.D.C. 1977). The Court concluded that the rights of the plaintiff class of black workers, as provided by law, had been violated and they were entitled to appropriate legal and equitable relief under the Civil Rights Act of 1964, 42 U.S.C. §§ 2000e et seq. as amended by the Equal Employment Opportunity Act of 1972, 42 U.S.C. § 2000e-16.

 The Court's decision was based principally on the unchallenged statistical data and undisputed material facts generated through several rounds of discovery. Those data and facts revealed an unmistakable pattern of racial discrimination against black OPS employees over an extended period of time. In particular, the facts demonstrated that black OPS workers were underrepresented in supervisory and journeyman positions; subjected to wide and unexplained disparity in wages; exposed to promotion procedures and policies lacking in objectivity and discriminatory in operation; and excluded from meaningful participation in training and career development programs which might have enhanced their opportunities for promotion.

 Following the Court's ruling and in an attempt to secure well-considered recommendations and appropriate measures to be included in a final order designed to eliminate discriminatory practices, two experts were appointed under the authority of Rule 53, Fed.R.Civ.P. The experts, Mitchell Fein and A. John Geis, were selected from a list of qualified nominees suggested by counsel for the parties. Messrs. Fein and Geis were directed to study and analyze job positions and training opportunities; to make recommendations regarding job qualifications and promotion procedures; and to suggest procedures in the selection, training and promotion of personnel in the Offset Press Section, all directed against racially discriminatory practices. Their assignment and responsibility was spelled out in a document entitled Protocol Regarding Procedures For Court-Appointed Experts, filed April 3, 1978. The experts first submitted a draft report which was subject to review and comment by counsel for the parties. Their FINAL REPORT was submitted on July 23, 1979.

 It was not surprising that the experts' findings and conclusions were not accepted fully by either party. Nonetheless, their efforts were creditable and substantial. Together with other relevant data of record they served as a basis for the fashioning of an order providing for final relief.

 After the submission of the FINAL REPORT, the parties embarked on lengthy negotiations designed to effect a stipulated settlement of the many still unresolved issues. Each side made concessions and on various occasions optimism was expressed. Finally, however, they announced their inability to agree.

 The plaintiffs submitted a lengthy proposed order accompanied by a supporting legal memorandum. The GPO filed a brief opposing many of plaintiffs' proposals. The Washington Printing and Graphic Communications Union, an intervening defendant representing journeymen at the GPO, presented its view and comments on plaintiffs' proposals concerning the Letterpress Transfer Program.

 After an interval of four years, the overall status of the black worker in the OPS still presents a situation demanding more than the imposition of general injunctive sanctions against future discrimination. Blacks are still denied promotion at a fair and equitable rate. While the number of black journeymen has increased somewhat since the 1977 ruling, the black worker remains badly underrepresented in uprate and supervisory positions. At present there are no black foremen or assistant foremen in the OPS. These conditions persist despite the disproportionately large percentage of black workers in the printing plant worker categories which existed prior to and throughout the history of this litigation.

 In October 1980, the Court convened a hearing on the plaintiffs' proposed order. At that time plaintiffs' counsel assessed the situation as one in which the GPO management still remains insensitive to problems associated with its promotion practices for blacks and has undertaken little to reduce the serious disparity between the number of blacks at the lower levels and the number of blacks at the higher levels.* Supplemental data submitted to the Court indicate that is not an invalid assessment. Following that hearing, additional memoranda were submitted by the parties in support of their respective positions. On the basis of the entire record and the developments since the 1977 Memorandum Opinion, the Court determines that much of the plaintiffs' proposed order is appropriate and should be adopted. Other provisions, however, particularly those governing back pay, have been modified.

 The Proposed Order

 There are four substantive aspects to the final relief afforded in this proceeding:

 1. General Relief concerning promotion practices available to all OPS workers; provisions for an employees' manual, vacancy notices, recordkeeping, an outside consultant, and a monitoring committee. (P P I-II(A), pages 2-8).

 2. Training Programs designed for promotion of workers to journeyman positions including maintaining the GPO Feeder/Assistant Program and restriction of workers from the Letterpress Section. (P II(B), pages 10-16).

 3. Promotion Procedures designed to eliminate, as far as practicable, subjective and potentially discriminatory aspects in the evaluation, selection and promotion of black employees to uprate and supervisory positions, together with a limited schedule for temporary goals and timetables. (P II(C), pages 16-21).

 4. Monetary Relief providing procedures for determining all individual victims of discrimination, and awarding them appropriate compensation. (P III, pages 21-25).

 1. General Relief

 The Order provides for certain relief that will benefit all employees of the Offset Press Section. One of the chief discriminatory practices identified in the Court's 1977 ruling was defendant's failure to provide definite standards for job performance and evaluations. Assignments were determined on the basis of subjective evaluation, often made by a single supervisor. Compounding this problem was the GPO's practice of filling vacancies without notice to employees who might have been eligible to apply for consideration. To remedy this problem, the Order provides for greater objectivity in personnel practices through the use of written standards for job performance. New job analyses, performed by either OPM or an independent expert, will serve as the basis for formulating objective qualifications for positions in OPS. The qualifications, along with a description of revised promotion and training opportunities available to all personnel, will be set out in an employees manual. The Order also requires that formal notice of all vacancies or training opportunities be posted conspicuously. Improved GPO recordkeeping will provide an employee's complete work history and full qualifications. The GPO is also directed to undertake an education program to assure that all employees understand the mechanics and purpose of the new procedures. Finally, an Equal Employment Opportunity Monitoring Committee is established to oversee the implementation of this Order and to participate in the selection of certain supervisory personnel.

 2. Training Programs

 The January 1977 Memorandum Opinion pointed out that training programs through which employees advanced to journeyman, uprate, and supervisory positions had operated in a discriminatory fashion. Accordingly, the Order modifies training procedures to correct past discrimination and to assure equal opportunity in the future. GPO is to maintain only one training program leading to journeyman positions in the Offset Press Section, the Feeder/Assistant Program. This program will be shortened and a new training plan developed by GPO.

 This provision effectively terminates the Letterpress Transfer Program as of August 26, 1977. Under a preliminary injunction entered that date, offset journeyman positions filled through the Letterpress Transfer Program since that time are deemed vacant and therefore available to graduates of the revised Feeder/Assistant Program. The Union intervenor objected strenuously to this aspect of the plaintiffs' proposed Order on the grounds that it contravened the collective agreement between the Union and GPO and unfairly penalized employees who had been cross-trained from Letterpress to Offset.

 The Court notes, however, that GPO, the Union, and employees in the Letterpress Transfer Program all had advance notice that transfers taking place after the August 26, 1977 Order were temporary and subject to any final relief afforded in this lawsuit. Moreover, GPO and the Union were well aware that the Letterpress Transfer Program had been identified as one of the discriminatory practices which had led to the exclusion of class members from journeyman positions. See 425 F. Supp. at 141. The Court therefore believes it is neither improper nor inequitable to close off the Program as a means of obtaining journeyman positions in OPS. Implementation of this provision will be stayed, however, pending the completion of a study by GPO on the impact of this change and of possible alternatives to Letterpress Transfer as a means of protecting Letterpress journeyman. The first full class of Feeder/Assistant graduates will not be eligible for journeyman status for some time. Since the use of offset is increasing, GPO may be able to devise a means for accommodating the interests of Letterpress transferees within the Order's remedial provisions governing training and promotion.

 As for training opportunities for uprate and supervisory slots, the Order provides that all OPS journeymen shall rotate through the various programs so that equal access can be assured.

 3. Promotion Procedures and Goals

 In its initial 1977 ruling, the Court found that GPO's promotion practices discriminated against class members. To eliminate the potential for further abuse, defendant is required to adopt new procedures for selecting supervisors, uprates, and entrants to the journeyman training programs. To remedy the present effects of past discrimination, the Order also provides for short-term goals in promotion.

 In the case of promotions to uprate and supervisory positions, the Order provides for input from OPS employees but leaves the final decision with GPO management. Applications for uprate and supervisor slots will first be screened by a five-member selection panel. The selection panel will be composed of employees holding positions above or equal to the vacancy under consideration. Three of the five members of each panel must be black, and three are to be nominees of the Equal Employment Opportunity Monitoring Committee established by this Order. Using the objective criteria to be developed under this Order, the selection panel shall narrow the field of applicants to the five best qualified. The names of the five candidates will then be forwarded to the Superintendent of the Offset Press Section, who shall select one to fill the vacancy.

 As with training for journeyman positions, the Court finds it necessary to set a goal for the promotion of class members to uprate and supervisor so as to remedy the lingering effects of defendant's past discriminatory practices. Although defendant strongly opposed judicial imposition of this type of relief, "at this point in the history of the fight against discrimination, it cannot seriously be argued that there is any insurmountable barrier to the use of goals or quotas to eradicate the effects of past discrimination." United States v. City of Miami, 614 F.2d 1322, 1335 (5th Cir. 1980) (footnote omitted). Such goals can be part of a negotiated settlement, see id., or judicially imposed, see, e.g., Crockett v. Green, 534 F.2d 715 (7th Cir. 1976). The Court believes the particular percentages adopted here are reasonable in light of the composition of the applicant pool for the various positions.

 4. Monetary Relief

 The parties differed widely in their proposals for monetary relief to the class members. Under the plaintiffs' proposal all members would be presumptively entitled to back pay, a suggestion hotly contested by the GPO. The proposal would establish three funds: for journeymen, uprates and supervisors. Both back and "front" pay would be disbursed to the class members from the funds. The amount of each fund would be determined by approximating the total amount of pay denied class members since October 24, 1965, due to defendants' discriminatory practices. Each member would be awarded a "share" from a fund, based on the period he or she was denied a position because of discrimination.

 No attempt is made to present a line by line analysis of the class plaintiffs' detailed proposals. They reflect serious consideration and no small effort by their counsel. The Court has accorded them careful review.

 While there are some features which appear worthy of considerations, others are questionable in light of recent decisions. The proposal for the creation of a fund for class-wide relief falls in the latter category and is therefore unacceptable to the Court. The fund approach advanced by the plaintiffs was developed as a means of avoiding a "quagmire of hypothetical judgment" as to which class members would have been promoted to particular positions. Pettway v. American Cast Iron Pipe Co., 494 F.2d 211, 260 (5th Cir. 1974). However, under the Supreme Court's subsequent decision in Teamsters v. United States, 431 U.S. 324, 97 S. Ct. 1843, 52 L. Ed. 2d 396 (1977), a finding of a pattern of discrimination against a class must be followed by individual determinations on retroactive relief for class members, even though this would require "a substantial number of individual determinations in deciding which of the minority employees were actual victims of the ... discriminatory practices." 431 U.S. at 371-72, 97 S. Ct. at 1872-73. Moreover, Teamsters places on each class member an initial burden of showing that he or she either applied for a position, or would have applied but for the discriminatory practices. Id., at 362-68, 97 S. Ct. at 1868-71. This approach is incorporated in the Court's final Order. Class members will be required to make an initial showing, by a preponderance of evidence, that they applied for a particular promotion or training opportunity, or that they would have but for GPO's discriminatory practices. Once individual members have taken this initial step, the burden shifts to the defendant to show, by clear and convincing evidence, that the denial was justified, or that the claimant would not have been selected had he applied. Baxter v. Savannah Sugar Refining Corp., 495 F.2d 437, 444-45 (5th Cir.), cert. denied, 419 U.S. 1033, 95 S. Ct. 515, 42 L. Ed. 2d 308 (1974); see Bundy v. Jackson, 205 U.S. App. D.C. 444, 641 F.2d 934 at 947, (D.C. Cir. 1981).

 To allow for the difficulties posed to potential claimants by GPO's practice of simply selecting employees to fill vacancies without allowing others to apply, the Order requires that an initial determination be made as to which positions were filled through formal application procedures, and which were filled without an opportunity for eligible class members to apply (referred to as "noncompetitive positions"). The Order then suggests several types of proof which a claimant might offer to help demonstrate that he or she would have applied for the position. This list is not exclusive, and other evidence deemed relevant would be acceptable.

 A second major area of disagreement between the parties concerns the length of the back-pay period. Defendant argues that back pay should be available only for the period between March 12, 1972, the date on which Title VII became applicable to the government, and the end of 1973, when according to the defendant, the Court-appointed experts believed the GPO had ended its discriminatory practices. Such a limited back-pay period does not comport with Title VII's broad remedial purposes. Section 706(g) of Title VII provides that "(b)ack pay liability shall not accrue from a date more than two years prior to the filing of a charge with the Commission." 42 U.S.C. § 2000e-5(g). This two-year period applies to all claims against government employers under Title VII, even where the two-year accrual period would begin before the effective date of the 1972 amendments. Thompson v. Boyle, 499 F. Supp. 1147, 1173-74 (D.D.C. 1979); Chewning v. Schlesinger, 471 F. Supp. 767, 774 n. 14 (D.D.C. 1979). The amount of back pay due individual claimants in this case will therefore be computed from March 12, 1971, two years before the initial administrative complaint was filed with GPO.

 Moreover, the patterns and practices discussed in the January 1977 Memorandum Opinion reveal a continuing violation of the rights of plaintiff class beginning well before the effective date of the 1972 amendments. It is appropriate to take into account these factors in determining any entitlement to back pay relief. See Bethel v. Jefferson, 191 U.S. App. D.C. 108, 589 F.2d 631, 636 (D.C. Cir. 1979); Huntley v. HEW, 550 F.2d 290, 295-96 (5th Cir. 1977). It is thus appropriate to consider the effects of defendant's discriminatory policies after August 8, 1969, the effective date of Executive Order No. 11478,** the first of a series of antidiscrimination Executive Orders which applied to GPO. Thompson v. Boyle, 499 F. Supp. at 1174.

 Once an individual class member is determined to be entitled to back pay, he shall continue to receive any difference between his current pay and the pay to which he is entitled until he is promoted to his rightful position. A prospective award, or "front pay" is necessary to make whole those class members wrongfully denied advancement. E. g., James v. Stockham Valves & Fittings Co., 559 F.2d 310, 358 (5th Cir. 1977), cert. denied, 434 U.S. 1034, 98 S. Ct. 767, 54 L. Ed. 2d 781 (1978) (citing cases). Orders awarding front pay have recently been entered in two cases in this district. See Thompson v. Boyle, 499 F. Supp. at 1175; Chewning v. Schlesinger, 471 F. Supp. 767 (1979). To deny this type of relief to identifiable victims of GPO's discriminatory practices would, in effect, ignore and perpetuate the economic effect of racial discrimination.

 The Final Order accompanies this Memorandum Opinion.

 FINAL ORDER

 In accordance with this Court's Memorandum Opinion entered January 12, 1977, granting the plaintiffs' motion for a summary judgment and denying the defendant's cross-motion for summary judgment, and the accompanying Memorandum Opinion, it is this 30th day of January, 1981,

 ORDERED that judgment is entered for the plaintiff class composed of all past, present and future black employees of the Offset Press Section of the Government Printing Office, and against the defendant Public Printer, Samuel Saylor; and it is

 FURTHER ORDERED that the plaintiff class is entitled to injunctive relief as follows:

 I. GENERAL INJUNCTION

 (A) For purposes of this Order, "Defendant" shall refer to the GPO, its officers, agents, servants, employees, attorneys, successors (including any successor created by Act of Congress or otherwise) and all persons or organizations in active concert or participation with it. The Defendant is hereby permanently enjoined and restrained from discriminating in any aspect of employment against the Plaintiffs on the basis of race and from failing or refusing to implement fully, or to participate and cooperate in the implementation of, the provisions set forth in the body of this Order.

 (B) No person shall be retaliated against or discriminated against by Defendant because that person has opposed any practice of Defendant challenged in this lawsuit, or because he or she has made a charge, testified, assisted or participated in any manner in any stage of the investigation, proceeding or hearing of this case.

 (C) It shall be a violation of this Order for Defendant to deny, deprive or attempt to deny or deprive, any member of the Plaintiff class of a right or benefit to which he or she is entitled by the terms and provisions of this Order.

 II. REQUIRED CHANGES IN PROMOTION AND TRAINING PROCEDURES

 (A) Remedies Applicable to All Employees

 (1) Notification of Promotion Opportunities and Procedures

 (a) Within 90 days after the date of this Order, the GPO shall publish a new, separate employees' manual to ensure that all employees fully understand the procedures by which promotions and training can be obtained. Such manual shall incorporate the standards and procedures required to be adopted pursuant to the terms of this Order. If such standards and procedures are not complete within 90 days after the date of this Order, the manual shall be promptly revised to set forth those standards and procedures upon their completion. Such manual shall also, in a manner consistent with all the terms of this Order;

 (i) describe in detail the specific work and responsibilities required for each position in the Offset Press Section;

 (ii) set forth the specific prerequisites for promotion to each such position; including the years of experience required in other positions; training required, if any; the exact procedure by which such training is provided to ...


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