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TROUT v. HIDALGO

April 16, 1981

Yvonne G. TROUT, et al., Plaintiffs,
v.
Edward HIDALGO, et al., Defendants; Charlene HARDY, Plaintiff, v. Edward HIDALGO, et al., Defendants; Marie Louise BACH, et al., Plaintiffs, v. Edward HIDALGO, et al., Defendants; Yvonne G. TROUT, Plaintiff, v. Edward HIDALGO, et al., Defendants



The opinion of the court was delivered by: GREENE

These four consolidated cases raise individual and class sex discrimination claims under Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. § 2000e, et seq. *fn1" The defendants in all of these actions are officials of the Department of the Navy and an agency of the Department of the Navy formerly referred to as the Naval Command Support Activity (NAVCOSSACT) and, since March, 1977, as the Navy Regional Data Automation Center (NARDAC). *fn2"

 Plaintiffs Yvonne G. Trout and Clara Perlingiero, both computer systems analysts, brought the first of the currently-pending actions, Civil Action No. 73-55, and they are also the representatives of the class previously conditionally and now fully certified in that case consisting of "all female professional technical employees employed by (NAVCOSSACT) or (NARDAC) at any time between June 6, 1972, and June 4, 1979." Trout is also the plaintiff in Civil Action No. 78-1098, in which she alleges retaliatory actions arising from her initial claim. Charlene Hardy, the plaintiff in Civil Action No. 76-315, is a retired computer programmer from NARDAC and a member of the designated class. Marie Louise Bach, a NARDAC security manager, and Joan Swann Creighton, director of the NARDAC Training Department, are the plaintiffs in Civil Action No. 76-1206, but they are not members of the class.

 I

 The class action aspects of this lawsuit involve an alleged pattern and practice of sex discrimination in defendants' hiring, performance evaluation, job assignment, promotion, and award procedures. Their resolution revolves primarily around the statistics submitted by the parties and the analysis of those statistics by the parties' experts. *fn3" As might be expected, the evidence adduced by plaintiffs in these areas differs sharply from that advanced by defendants. Moreover, as will be explained below, neither analysis is wholly free from defects or ambiguities. Some of these problems are attributable to the underlying data (see note 4 infra) while others are to a degree inherent in the various methods of analysis (see, e.g., 884 infra) which almost inevitably required those performing them to make trade-offs in terms of inclusiveness and specificity. On balance, however, for the reasons indicated below, the court finds plaintiffs' statistical proof to be the more reliable.

 That proof consists essentially of multiple regression analyses of raw statistical data furnished to plaintiffs by defendants in the course of discovery. *fn4" Multiple regression is a statistical technique designed to estimate the effects of several independent variables on a single dependent variable. Properly used in a case such as this, the methodology provides the ability to determine how much influence factors such as sex, experience, and education each have had on determining the value of a variable such as salary level. *fn5" The analysis also enables an observer to cumulate effects of the various factors so as to determine the degree to which explanation of the dependent variable can be attributed to the independent variables in combination. *fn6" Regression analysis is well recognized by the literature and the courts in Title VII litigation. *fn7"

 Plaintiffs' expert *fn8" began his analysis with the undisputed fact that the average salary for female employees at NARDAC has throughout the relevant period been considerably lower than that of males. At the beginning of that period, in 1972, women earned $ 2,700 less than men, that is, 82 percent of the male salaries; at the end of the period, in 1979, women earned $ 4,300 less than men, or 84 percent of the male salaries. *fn9" The salary differentials throughout this period reflect the relative concentration of women in NARDAC in the lower civil service grade levels. During that period, women constituted about 20 percent of the NARDAC labor force. They were consistently overrepresented in the lower grades, with their share varying between 21 and 50 percent for GS-7 through GS-11 and between 42 and 100 percent for GS-5, and they were with equal consistency underrepresented in the upper grades, where they occupied between 3 and 10 percent of the jobs at GS-14 and above. In the middle positions there also was a contrast, although it was less stark. Women held approximately 24 percent of the GS-12 positions, and about 10 percent of the GS-13 positions.

 With these salary differentials clearly established, plaintiffs' expert sought to determine next, on a year-by-year basis between 1972 and 1979, *fn10" whether the disparity could be accounted for by differences between men and women in education and experience, *fn11" or whether it was more likely to be attributable to sex discrimination. To accomplish this analysis, the expert witness specified for regression a linear model which included dummy variables for level of education, *fn12" years of NARDAC service, years of other government employment service, years of potential nongovernment experience between date of receipt of last educational degree and date of entry in federal service, and sex. *fn13" The dependent variable was salary.

 When prior experience and education were thus taken into account, female employees still received substantially lower salaries than men, the yearly differential attributable to sex ranging from $ 2,200 to $ 3,500. *fn14" Since there never was any suggestion by the government that factors other than education or experience could legitimately account for the differences, *fn15" the Court would clearly have been justified, absent some explanation, to draw the conclusion that equally qualified female employees of NARDAC consistently received lower salaries on the average than male employees and, accordingly, that they had been the victims of improper discrimination.

 II

 The government's answer to plaintiffs' statistical case was two-fold. It argues initially that various defects in the analysis renders its ultimate conclusions unreliable and that, inasmuch as plaintiffs have the burden of proof, this unreliability demands that judgment be entered against them. Additionally, the government presented statistical evidence through its own experts, arguing that, even if plaintiffs' statistical analysis were deemed to constitute a prima facie case, that case was adequately rebutted by the government's statistical findings. The Court considers each of these arguments in turn.

 The government's objections to the reliability of plaintiffs' statistically-based conclusions may be summarized as follows. First, it is claimed that plaintiffs' expert improperly permitted pre-1972 statistical evidence and evidence of other agencies' actions to intrude into his analyses. In this regard, defendants assert that the inclusion of individuals hired before 1972 (when Title VII was not applicable to federal employees) and of individuals who transferred from other federal agencies (whose salaries were presumably already predetermined) would inappropriately subject the defendants to liability for actions that either were not legally cognizable when they occurred or were attributable to agencies other than NARDAC. Second, defendants argue that plaintiffs' expert failed to include in his analysis several relevant factors and that for this reason the coefficient suggesting discrimination was biased. And third, it is contended that the experience factor used by plaintiffs' expert, who included as experience the entire period between completion of education and hiring by the government, reflects not so much actual experience as merely age.

 A. Defendants' objection to the failure of plaintiffs' expert to eliminate all pre-1972 data is not as persuasive as might appear at first blush. Although discriminatory conduct which occurred solely prior to March 24, 1972, is not directly actionable in Title VII suits against the federal government, *fn16" it has been recognized that evidence of such conduct can

 
in some circumstances support the inference that such discrimination continued, particularly where relevant aspects of the decision-making process had undergone little change. *fn17"

 Between 1967 and 1972, NARDAC engaged in a number of practices which unfairly discriminated or had the strong potential to discriminate against women among them the conducting of evaluations of employees on a subjective basis by male supervisors; *fn18" the failure to advertise promotion opportunities; and the preselection of male employees for higher level positions by male supervisors. It is likely that such discrimination before 1972, even if coupled with neutral employment practices since then, produced actionable continuing discriminatory effects after 1972, particularly since Civil Service regulations patterned after the so-called Whitten Amendment (5 C.F.R. § 300.602 (1968); P.L. 253, 82d Cong., 1st Sess. (1951)), constrained the maximum allowable rate of grade promotion. *fn19" Under these circumstances, it was appropriate for plaintiffs' expert not to exclude completely the effects of pre-1972 conditions. *fn20"

 With regard to defendants' objection that plaintiffs included employees who transferred from other agencies with "predetermined grades and salaries," NARDAC did not make a convincing showing that it had no control over initial grade determinations. *fn21" Although the agency was, of course, entitled to attempt to demonstrate in its own statistical analysis that if grade placement decisions by other agencies were excluded no vestige of discriminatory results would remain, the Court could not appropriately dismiss plaintiffs' own analytical conclusion upon that basis. The logical product of defendants' theory would be a requirement that plaintiffs in Title VII cases must join as defendants all government agencies from which any employees ever transferred a proposition which suggests that the objection is not compelling. *fn22"

 B. The other objections made by defendants to plaintiffs' statistics essentially raise legal issues relating to the burden of proof. Certainly, plaintiffs' expert did not, in his analysis, account for each of the factors that the government suggests should have been considered. It is also true that a model which incorporated additional potentially relevant factors (such as type or quality of education and experience) would form a more perfect foundation for determinations regarding allegations of discrimination. However, defendants have furnished no evidence that inclusion of the missing variables or refinement of others would have altered rejection of the hypothesis of no discrimination. Indeed, they failed to offer any evidence indicating that type of education and experience or quantity of experience per age was distributed unequally among the women and men in the NARDAC population.

 To be sure, defendants did suggest that technical, computer-related education and experience are not equally distributed in the general population between men and women, *fn23" and they have also argued that women are more likely than men to leave the labor force to raise children, and, hence that on the average they possess less experience per age than men. However, the generalities offered by lay witnesses on these subjects are inadequate, by themselves, to undermine plaintiffs' analysis. Certainly, the Court would not be justified in accepting mere sex stereotypes as an adequate rebuttal. What was required in this circumstance was substantial, expert supporting evidence keyed to the population here involved, but such evidence was not forthcoming. See Vuyanich v. Republic National Bank, 505 F. Supp. 224 (N.D.Tex.1980).

 C. Thus, the basic question is have the plaintiffs satisfied their burden of proof by adducing the type of statistical evidence that they did, or were they affirmatively and as part of their own case required to do more? *fn24"

 Under current law, a plaintiff has the burden of establishing a prima facie case of sex discrimination under Title VII. *fn25" In class action litigation under that statute, statistics often play an important role in both parties' claims regarding the existence of discrimination. *fn26" Indeed, statistics alone may suffice to establish a prima facie case. *fn27" As the Supreme Court made it clear in Hazelwood School District v. United States, supra, 433 U.S. at 307-08, 97 S. Ct. at 2741-42,

 
(w)here gross statistical disparities can be shown, they alone may in a proper case constitute prima facie proof of a pattern or practice of discrimination. *fn28"

 As indicated, parties in complicated Title VII actions are increasingly using multiple regression analysis, such as that conducted in the instant case, to separate the phenomenon of discrimination from a myriad of innocent interacting factors. *fn29" While such analysis can assist significantly in making the refined and sophisticated judgments required, *fn30" it would be erroneous to impose upon the party relying upon this technique the burden of incorporating every conceivable refinement and disproving every contingency. As Professor Finkelstein has pointed out, *fn31"

 
(in) criticizing models it is possible to speculate endlessly that different data, forms of equation, or explanatory variables would yield significantly different and superior results. Compelling definite calculations will bring such easy speculation down to ...

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