The opinion of the court was delivered by: OBERDORFER
This is a Title VII class action on behalf of all black and female past, present, and future employees and applicants for employment at the headquarters of the Maritime Administration (MarAd), in which plaintiffs allege discrimination on the basis of both race and sex on the part of MarAd in a number of phases of the employment process. In a Memorandum and Order filed June 7, 1982, the Court found that MarAd had discriminated on the basis of race, but that plaintiffs had failed to prove by a preponderance of the evidence that defendant had discriminated on the basis of sex. The parties have since, at the direction of the Court, filed memoranda on the subject of relief. Defendant has also sought to bring to the Court's attention evidence of a new study of its selection procedures, which it claims requires amendment of the Court's earlier finding of discrimination. For reasons set out more fully below, an accompanying Order will deny the defendant's motion for amended findings and will order both individual and class relief to the prevailing class of black employees and applicants at MarAd headquarters.
The proposed Injunction (sometimes hereinafter referred to as an "Order") accompanying this Memorandum sets out the procedures to be followed for the notifications and processing of claims for backpay and other benefits by individual members of the prevailing class. Notices will be mailed to all class members informing them of the outcome of the earlier proceedings. Each individual claiming relief will then have 30 days in which to file his or her claim. Any claims that cannot be resolved to the satisfaction of both parties will be referred to a Special Master to be appointed by the Court at the expense of the losing party.
MarAd asserts that class members seeking individual relief must now come forward and prove their claims under the standards set out for individual employment discrimination suits in Texas Department of Community Affairs v. Burdine, 450 U.S. 248, 67 L. Ed. 2d 207, 101 S. Ct. 1089 (1981). In Burdine, the Supreme Court held that the plaintiff had the initial burden of showing that she was rejected from an available job, that she was qualified for that job, and that another individual was subsequently hired. The defendant would then be allowed to advance any legitimate, non-discriminatory reason for its failure to hire the plaintiff. The burden of proof, however, would at all times remain with plaintiff, who could prevail after such a showing by defendant only by proving that the asserted reason was a pretext masking discrimination.
As the D.C. Circuit recently held, however, this allocation of burdens of proof does not extend to individual claims after a class showing that "the employer is a proven discriminator." McKenzie v. Sawyer, 684 F.2d 62, 77, 221 U.S. App. D.C. 288 (D.C. Cir. 1982); see Day v. Mathews, 174 U.S. App. D.C. 231, 530 F.2d 1083 (D.C. Cir. 1976). As the Supreme Court stated in International Brotherhood of Teamsters v. United States, 431 U.S. 324, 52 L. Ed. 2d 396, 97 S. Ct. 1843 (1977), in class-wide suits of this kind,
individual relief does not arise until it has been proved that the employer has followed an employment policy of unlawful discrimination. The force of that proof does not dissipate at the remedial stage of the trial . . . . The [plaintiffs] need only show that an alleged individual discriminatee unsuccessfully applied for a job and therefore was a potential victim of the proven 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.
Id. at 361-62 (footnote omitted).
Right of white women to proceed with individual claims
In its Memorandum and Order of June 7, 1982, the Court found that plaintiffs had not demonstrated the existence of class-wide discrimination against women at MarAd. Plaintiffs assert that individual white women with pending individual claims should now be given the opportunity to proceed with those claims. Defendants object, claiming that the failure of the class action claim of sex discrimination binds all individuals in the class.
In general, the court conducting a class action cannot predetermine the res judicata effect of its judgment. Fed. R. Civ. P. 23(c)(3) advisory committee note (1966). The claims of individual white women who are not named plaintiffs in this action are not before the Court, and their right to pursue those claims must therefore be left to the appropriate forum. The individual claim of Janice Lawrence, the white female named plaintiff in this action, is another matter, however. The Court finds that, to the extent that her individual claim is based upon evidence different from that forming the basis for the failed claim of class-wide discrimination, Janice Lawrence retains the right to proceed with her individual claim of disparate treatment. Dickerson v. United States Steel Corp., 582 F.2d 827 (3d Cir. 1978); see Restatement (Second) of Judgments § 26(1)(b) & comment b. As the Dickerson court pointed out, a class claim of discrimination based upon statistical evidence presents radically different issues to the court than does an individual claim of "discrete, isolated instances of discrimination . . . for which the statistical evidence of a pattern of discrimination may have been lacking." Id. at 830-31. The Supreme Court has only recently reaffirmed the basic distinction between the issues of "bottom line" racial balance in the employer's entire workforce and discriminatory treatment of individuals. Connecticut v. Teal, 457 U.S. 440, 102 S. Ct. 2525, 73 L. Ed. 2d 130 (1982); see Furnco Construction Co. v. Waters, 438 U.S. 567, 579, 57 L. Ed. 2d 957, 98 S. Ct. 2943 (1980). Since the earlier trial focused only on the class claims of disparate impact, therefore, there is no inconsistency between the court's finding of no disparate impact class-wide and the right of Janice Lawrence, as an individual claimant, to present her claim of disparate treatment. In presenting this claim, of course, the individual plaintiff must meet the evidentiary burdens set out in Texas Department of Community Affairs v. Burdine, 450 U.S. 248, 67 L. Ed. 2d 207, 101 S. Ct. 1089 (1981) and McDonnell Douglas Corp. v. Green, 411 U.S. 792, 36 L. Ed. 2d 668, 93 S. Ct. 1817 (1973).
Plaintiffs further claim that the notice procedure set out for the notification of individual members of the class of black employees of MarAd should be extended to notify white female employees of the outcome of the suit, so that they may proceed with their individual claims. While plaintiffs are of course free to provide such notice to the members of the nonprevailing class, it must be at their own expense; there is no reason to charge defendants, who prevailed on this issue, with the cost of informing members of the nonprevailing class.
Validation of Selection and Promotion Procedures and Criteria
In its Memorandum and Order of June 7, 1982, the Court asked the parties to formulate their submissions on the subject of relief on the assumption that the Court would require defendant to conduct a validation study of employee selection and promotion procedures at MarAd. Defendant has gone beyond this request and has submitted a replication study of its employee selection procedures, in which it claims that an independent researcher has replicated earlier hiring decisions with the use of standard OPM and MarAd criteria but without knowledge of earlier results or of the applicants' race. Defendant asserts that its expert arrived at a conclusion identical to MarAd's in approximately 90% of all cases. It offers statistical evidence to show that the approximately 10% difference followed no statistically significant racial pattern.
Plaintiffs object strenuously to any consideration of this "new evidence." They argue first that defendant has failed to follow the proper procedural requirements for presenting this evidence to the Court and for allowing plaintiffs an adequate opportunity to respond. Plaintiffs argue further that the new study is fraught with technical problems that seriously undermine its value for proving what it purports to prove.
It is not necessary to decide the merits of plaintiffs' objections to consideration of the new study, however, for the simple reason that the new information the study makes available does not in fact demonstrate the validity of MarAd's selection procedures but rather intensifies the need for a proper validation study. The new study demonstrates that the selection criteria at MarAd are facially neutral and that the statistics do not support a finding of a pattern of intentional racial discrimination. Yet what the plaintiffs proved in this case was disproportionate impact, a Title VII theory that is independent of the employer's subjective intent. Griggs v. Duke Power Co., 401 U.S. 424, 28 L. Ed. 2d 158, 91 S. Ct. 849 (1971). When the Supreme Court decided Griggs over a decade ago, it made it clear that Title VII requires more than a mere absence of discriminatory intent. Title VII requires an employer to refrain from engaging in any employment practices that "operate as 'built-in headwinds' for minority groups and are unrelated to measuring job capability." Id. at 432. An employment practice that has a disproportionate impact on minorities must be shown to be manifestly job-related and scientifically valid for its purported purposes. Id.
MarAd's "replication" study does not speak to this requirement. What defendant has purportedly proven is that its selection standards and procedures have a disproportionate impact even when the race of applicants is unknown to the selecting official. Under these circumstances, the fault clearly lies in the standards and procedures themselves. In the absence of a validation study as required by the Uniform Guidelines on Employee Selection Procedures, 29 C.F.R. Part 1607 (1981), therefore, the use of those standards and procedures in the face of a disproportionate impact on blacks is a clear violation of Title VII.
Defendant asserts that plaintiffs have failed to show disparate impact on blacks at the stage in the selection process at which applicants who have been deemed "eligible" are certified, and that therefore that stage of the process does not require validation. Defendant is correct that in some cases only those parts of the selection and employment process that have disparate impact need to be validated. Rivera v. City of Wichita Falls, 665 F.2d 531 (5th Cir. 1982). However, this principle is applicable only when a selection process includes several discrete and isolated elements, only some of which have disparate impact.
In this case, many of the same criteria are used at both the eligibility and certification stages; the only difference is the procedures for using them and the stringency with which they are applied. Even if disparate impact is erased at the first stage, therefore, it is likely to reappear at the second stage, absent a careful validation of the criteria being used at both stages. It is necessary to validate the selection process as a whole.
Defendant argues that plaintiffs have not attacked the OPM X-118 and MarAd standards themselves, so that those standards are now immune from challenge.
However, the Court has already found that the standards are at issue, see Conclusion of Law 10, and have been shown to have an adverse impact, either in and of themselves or as applied. Since defendants now claim to have removed the latter possibility, validation of the standards becomes critical.
Finally, as plaintiffs point out, the unguided use of oral evaluations from supervisors must cease. Supervisory evaluations, unless made in the context of specific and concrete guidelines, are especially prone to discriminatory abuse. See Stoller v. Marsh, supra; Smith v. Secretary of the Navy, 212 U.S. App. D.C. 229, 659 F.2d 1113 (D.C. Cir. 1981). Therefore, although oral evaluations are not per se improper, they must occur in the context of concrete guidelines known to both parties. Moreover, the selecting official must be required to memorialize the conversation and to make it a part of the selection record. Of course, written evaluations are preferable, as they are easier to control for improper content and more open to later review if challenged. Cf. Stoller, slip op. at 17-21 (right of employee under Privacy Act to review contents of his personnel file). The use of oral evaluations of any kind must therefore be based on concrete reasons that make written evaluations demonstrably inferior in the particular situation.
The validation described above must be performed for all competitive and non-competitive selections and promotions at the level of GS-12 and below. Plaintiffs failed to show any discriminatory impact at grades 13 and above, hence employment practices involving those positions need not be validated.
Additional Affirmative Relief
Plaintiffs have requested a broad range of affirmative relief for the class as a whole, including the imposition of promotion and hiring goals, improvements in the Upward Mobility and Mid-Level Training Programs, creation of an EEO Monitoring Committee, and new procedures and standards for training, awards, discipline, and Reductions-in-Force. The Court finds many of these requests to have merit. The accompanying Order provides for an expansion of the role of MarAd's EEO Committee to help develop EEO programs and investigate violations and complaints. The Order also provides that whatever future recruitment occurs must include intensified recruitment of minorities and new standards for training and Upward Mobility programs that will help minorities to overcome present barriers to the attainment of upper level positions at MarAd.
Some of the relief requested by plaintiffs, such as that dealing with disciplinary proceedings and RIFS, addresses issues upon which plaintiffs have not introduced sufficient evidence to demonstrate a need for relief. It would thus not be appropriate at this time to order relief in these areas at this time.
The Court also does not find it necessary at this time to impose specific goals on defendant's hiring and promotion activities. Although the Court has found that MarAd's procedures have a significant discriminatory impact on blacks, the evidence to date indicates that that impact is not so large that it cannot be addressed through aggressive recruitment of qualified minorities and a thorough validation of MarAd's promotion and hiring procedures to eliminate any disparate impact that is not overridden by business necessity. However, this Court will retain jurisdiction over this case for a period of five years, to allow reconsideration of the scope of affirmative relief if it appears to become appropriate in light of future experience.
Plaintiffs have also claimed that defendant has failed in its affirmative action obligations under 42 U.S.C. § 2000e-16(b). This claim is to some extent mooted by the remedies ordered pursuant to the finding of race discrimination. However, to the extent that plaintiffs seek additional relief on this claim for the class of black employees or for the class of female employees whose discrimination claim was not successful, the Court finds that, under the "arbitrary and capricious" standard of review earlier found applicable to MarAd's affirmative action plan, see Conclusion of Law 13, plaintiffs are entitled to no further affirmative relief on this basis. Plaintiffs have failed to demonstrate that the formulation of defendant's affirmative action plan was not based on a consideration of the relevant factors or that it constituted a clear error in judgment. Id.
In order to ensure that the Court's final injunction in this case fairly reconciles the rights of plaintiffs with the operational responsibilities of defendants, the accompanying Order has attached to it a draft Injunction upon which the parties are invited to comment. The Court is primarily interested in defendants' operational ability to carry out the requirements of the Injunction. The accompanying Order invites the parties to submit any such comments they may have on or before February 22, 1983.
In accordance with this Court's Memorandum and Order filed June 7, 1982, and upon consideration of the submissions of the parties on the subject of relief, defendant's motion for amended and additional findings, and plaintiffs' opposition thereto, it is this 24th day of January, 1983, hereby
ORDERED: that defendant's motion for amended and additional findings should be, and hereby is, DENIED; and it is further
ORDERED: that judgment is entered for the plaintiff class of black past, present, and future employees and applicants for employment at MarAd headquarters against the defendants Drew Lewis and Harold Shear; and it is further
ORDERED: that judgment is entered for the defendants Drew Lewis and Harold Shear against the plaintiff class of female past, present, and future employees and applicants for employment at MarAd headquarters; and it is further
ORDERED: that the parties may file memoranda commenting on the attached proposed Injunction on or before February 22, 1983.
For the reasons set out in the Court's Memorandum and Judgment and Order filed January 25, 1983, and after consideration of the comments of the parties on the Draft Injunction filed January 25, 1983, it is this 17th day of March, 1983, hereby
(A) For purposes of this Order, "Defendant" shall refer to the Maritime Administration (MarAd), its officers, agents, servants, employees, attorneys, successors (including any successors created by Act of Congress or otherwise) and all persons or organizations in active concert or participation with it.
(B) Defendant is hereby permanently enjoined and restrained from discriminating in any aspect of employment against the plaintiffs on the basis of race and from depriving or attempting to deprive any member of the plaintiff class from any right or benefit to which he or she is entitled by the terms and provisions of this Order.
(C) Defendant shall not engage in any act or practice which constitutes a reprisal or attempted reprisal against any past, present, or future employee of MarAd because of such person's activities in connection with this case.
(A) Discrimination Complaint Processing. Defendant shall, to the fullest extent feasible, ensure that individual complaints of discrimination filed at MarAd headquarters are resolved under its complaint system within 150 days of the filing of a formal complaint, unless the complainant agrees to an extension of time. Defendant shall retain each formal complaint, an adequate record of each informal complaint made to an EEO counselor, and an adequate record of any subsequent action taken on any complaint, formal or informal.
(B) Equal Employment Opportunity (EEO) Committee. Defendant shall facilitate the performance of the duties of its EEO Committee prescribed by MAO 770-713-1. In addition, defendant shall authorize the EEO Committee to advise and assist it in the drafting of affirmative action plans, in minority recruitment, and in the development of Upward Mobility and training programs. The EEO Committee may submit to officials responsible for administering the MarAd complaint system information and representations about complaints about discrimination or the administration of defendant's affirmative action program.
(C) Recruitment. Consistent with limitations on hiring and positions imposed by budget and similar restrictions, MarAd shall take all reasonable action to recruit qualified black applicants for employment, with special emphasis on hiring and retaining qualified black employees for administrative, professional, and technical support jobs.
(D) Special programs. Consistent with limitations on hiring and positions imposed by budget and similar restrictions, MarAd shall develop, monitor, and maintain worker trainee, cooperative student, stay in school, and summer aide programs and all other recruitment efforts to increase hiring and promotion opportunities.
(E) Upward Mobility Program. Within 60 days after the entry of this Order, defendant shall, consistent with limitations on hiring and positions imposed by budget and similar restrictions, institute a comprehensive and centralized plan to identify all positions at MarAd Headquarters that may be converted to Upward Mobility positions created pursuant to the Upward Mobility Training agreement approved by the Office of Personnel Management in September 1982. Defendant shall identify and create Upward Mobility and trainee positions through occupational analysis, job redesign, job restructuring, and modification of agency job qualification standards.