that the Agency's preselection in this case was not inadvertent.
The Agency also contends that the rejection of Ms. Kobylinski was not discriminatory because the position was filled pursuant to its standard personnel procedures. The applications were initially screened by the personnel office, which referred a list of "best qualified" applications to the selecting official. The selecting official then made the final choice, choosing the male candidate from the "best qualified" group. The Agency contends that this procedure protects against preselection. Again, the flaw in the Agency's reasoning is obvious. The personnel office knew about Ms. Kobylinski's interest in the position, but she was never considered because she did not file an application. As stated above, such an application would have been futile. The whole procedure, therefore, was not neutral, as the Agency suggests, but tainted by the preselection. Moreover, a 1976 Civil Service Commission review of the Agency's personnel actions found that the "promotion actions for competitive service have not met the standards of the Federal Merit Promotion Policy." In particular, the Commission concluded that, in some cases, there was evidence "which supports that there was preselection and favoritism exhibited in competitive actions." Clearly the Agency cannot rebut the plaintiff's prima facie case by following its standard procedures.
EVEN ASSUMING THAT THE AGENCY REBUTTED MS. KOBYLINSKI'S PRIMA FACIE CASE, THE AGENCY'S STATED REASONS ARE PRETEXTUAL
Even if the defendant successfully rebuts the plaintiff's prima facie case, the plaintiff may still show that the defendant's stated reasons for the plaintiff's rejection are mere pretext. McDonnell Douglas, 411 U.S. at 804, 93 S. Ct. at 1825. The pretext is clear in the present record. As noted above, the Agency preselected male candidates on at least three occasions. The Civil Service Commission also concluded that the Agency's promotion procedures had not met the appropriate standards. Therefore, even assuming that the Agency successfully rebutted Ms. Kobylinski's prima facie case, Ms. Kobylinski must prevail because the Agency's justifications are a mere pretext for discrimination.
THE COURT FINDS THAT THE AGENCY DID NOT RETALIATE AGAINST THE CLASS
By Order of April 19, 1978, this Court conditionally certified this case as a class action. The conditionally certified class consisted of "all women who have applied for employment with or are currently employed by the United States Information Agency and who have been or continue to be adversely affected by the discriminatory employment practices of the defendant."
At that time, the only discriminatory practices at issue concerned "promotion and hiring practices." Original Complaint para. 1. However, by Order of October 10, 1978, the Court granted plaintiffs leave to file an amended supplemental complaint. That complaint, as amended, included a claim that the Agency "maintained a practice of reprisals against women who have filed sex discrimination charges against the Agency." Supplemental Complaint para. 2. Thus, the action contains a class claim against the Agency based on its allegedly discriminatory retaliation. Although this Court denied the class claims, including the retaliation claim, by its October 24, 1979, Findings of Fact and Conclusions of Law, it did not make any findings regarding the class retaliation claim. In remanding the case, the Court of Appeals directed this Court to make findings of fact and conclusions of law concerning this claim. The Court now considers that claim.
The class retaliation claim is brought under Section 704(a) of the Civil Rights Act of 1964, 42 U.S.C. § 2000e-3(a). That section provides, in pertinent part:
It shall be an unlawful employment practice for an employer to discriminate against any of his employees . . . because he has opposed any practice made an unlawful employment practice by this title, or because he has made a charge, testified, assisted, or participated in any manner in an investigation, proceeding, or hearing under this title.
42 U.S.C. § 2000e-3(a).
This section protects those plaintiffs who filed EEO charges against the defendant, or who otherwise "participated" in such a proceeding. It is also clear that the "opposition" clause of this section protects those plaintiffs whose opposition to the defendant's practice fell short of actually filing EEO charges. Parker v. Baltimore and Ohio Railroad, 209 U.S. App. D.C. 215, 652 F.2d 1012, 1019 (D.C.Cir.1981). However, because of the language of the Supplemental Complaint, which limited the retaliation claim to "women who have filed sex discrimination charges", the defendant seeks to preclude the Court from considering reprisals against women who did not file charges against the Agency. The Court rejects this contention because, ever since April, 1979, when the plaintiffs sought to enjoin the Agency from retaliating against individuals who opposed the Agency's actions or who "otherwise exercise[d] their rights under Title VII", the Agency has had sufficient notice that the plaintiffs' class claim extended to women who opposed, in any way, the Agency's discrimination. "Fair notice", such as this, is all that is required. Conley v. Gibson, 355 U.S. 41, 48, 78 S. Ct. 99, 103, 2 L. Ed. 2d 80 (1957). The Court also notes that throughout the period for discovery and the trial in this case, the defendant has not objected to any evidence on the basis that it was beyond the scope of the complaint. Thus, the class retaliation claim is not limited to plaintiffs who filed EEO charges; it encompasses all plaintiffs who have opposed the Agency's discriminatory practices.
BECAUSE THE PLAINTIFFS HAVE FAILED TO PROVE A PATTERN OR PRACTICE OF REPRISALS, THEY HAVE NOT ESTABLISHED A PRIMA FACIE CASE OF CLASS-WIDE RETALIATION
The analytical framework for a retaliation claim derives from that announced in McDonnell Douglas, supra. To establish a prima facie case, an individual plaintiff must show that (1) she engaged in a protected opposition to unlawful discrimination, (2) her employer subsequently took an adverse employment action, and (3) there was a causal connection between the protected activity and the adverse action. Burrus v. United Telephone Company of Kansas, Inc., 683 F.2d 339, 343 (10th Cir.), cert. denied, 459 U.S. 1071, 103 S. Ct. 491, 74 L. Ed. 2d 633 (1982); Hickman v. Flood & Peterson Insurance, 29 Fair Empl. Prac. Cases 1467, 1469 (D.C.Colo.1982). The present case involves a class claim of retaliation, however, not an individual one.
Claims based upon retaliation are "generally personal in nature." Pendleton v. Crown, Cork & Seal Co., 31 Fair Empl.Prac.Cases 1701, 1705 (D.Md.1980). See also Colbert v. City of Wichita, 33 Fair Empl.Prac.Cases 218, 220 (D.Kan.1983) (retaliation usually takes many forms, and thus it is not well-suited for class treatment). Thus, there are very few cases involving class claims of retaliation such as this one. Because retaliation manifests itself in many ways, and often turns on facts peculiar to each case, the Court holds that, to establish a prima facie case, the retaliation must have been pursuant to a general practice of the defendant. Cf. General Telephone Co. of the Southwest v. Falcon, 457 U.S. 147, 159 n. 15, 102 S. Ct. 2364, 2371 n. 15, 72 L. Ed. 2d 740 (1982) (rejecting class certification for "across-the-board" attacks against various discriminatory practices, but leaving open the possibility that a single general practice of discrimination could justify a class, because "it is noteworthy that Title VII prohibits discriminatory employment practices, not an abstract policy of discrimination.") (emphasis in original).
Therefore, in the analytical framework mentioned above, step (2) must be modified in class actions to reflect the requirement that the adverse actions must have been taken pursuant to a general practice or policy of the defendant.
In presenting this class retaliation claim against the Agency, the plaintiffs chiefly rely upon deposition testimony, and related exhibits, of six female Agency employees. Plaintiffs' Post-Remand Brief on Class Retaliation Claims at 1. As explained below, this evidence is insufficient to establish a general practice of reprisals taken by the Agency, and thus the plaintiffs have failed to present a prima facie case of retaliation.
Ms. Barbara Callihan testified for the plaintiffs. She was employed in the Current Affairs Division of the Voice of America as a researcher/writer. She complained to her supervisor, Mr. Hanu, that she felt that she was being asked to do secretarial-type duties. After she complained in writing about typing duties, Mr. Hanu wrote her a note stating, "As I told you before, no one refuses any type work in this division. If you are still unclear about your duties in this division, please consult your job description which, I am sure, contains the clause 'plus any other type work assigned,' etc. And if you are still unsatisfied, I will have to accept your resignation." (Callihan Exhibit #1).
However, Ms. Callihan also testified that Mr. Hanu's temper was not aimed solely at women. She stated, "if you are asking me if he is picking on women, I couldn't tell you. I don't think he does." (Callihan Deposition, 108). She further stated, in response to a question about whether his disagreements with employees were limited to women, "man or woman, black or white, it doesn't make a bit of difference if he is upset with you, but look out." Id. Finally, Ms. Callihan testified that she knew of no one who was threatened with reprisals for their participation in the suit. Id. at 115.
Ms. Michala de Souza was a foreign language broadcaster in the Czechoslovakian Service who felt that she was assigned secretarial duties. She once complained to her supervisors, who responded that, because she was an alien, she should not complaint. (de Souza Deposition, 26-27, 58). Although she was frightened, id. at 34, after speaking with an Agency personnel officer, the situation was resolved to her satisfaction. Id. at 61. In fact, by the time of her deposition, she had recently been promoted. Id. at 59.
The plaintiffs also rely upon the deposition testimony of Anita K. Tong, who was employed in the Chinese Service as a producer. She complained to a union representative that she was required to perform greater services for less pay than males in the same job. (Tong Deposition, 43-44). She testified that she was severely criticized by her supervisors afterwards. Id. at 45-46. And, after her deposition, one of these supervisors signed an unfavorable performance evaluation for Ms. Tong. (Tr. 5/31/79, 46-48).
Ms. Deborah Showalter also testified. Although she was a college graduate, she applied and was hired as a clerk/typist. (Showalter Deposition, 6). She received some professional duties as a writer even though she remained a clerk/typist. Id. at 25. She felt as though she deserved a promotion, and she went over her supervisors' heads to speak to the Deputy Administrator concerning a promotion. Id. at 26-27. This upset her supervisors, one of whom was Mr. Hanu. Ms. Showalter sought the help of a union representative to obtain a promotion. Id. at 46-60. Mr. Hanu had apparently called her a trouble-maker, and at a staff meeting, he inaccurately stated that she had filed a class action against him. Id. at 71, 73-75. After realizing that his information was incorrect, Mr. Hanu publicly retracted the statement and personally apologized to Ms. Showalter. Id. at 83. As previously noted, some plaintiffs testified about Mr. Hanu's temper, and that his disagreements are not limited to women. (Callihan Deposition at 108).
Ms. Etel Berger, a GS-9 foreign language broadcaster in the Brazilian Branch of Voice of America, testified as to Agency reprisals. She felt that she was performing the same duties as others at GS-11 or GS-12 levels. (Berger Exhibit #8). She felt as though she would not receive a promotion, so she wrote a letter to the Director of Personnel announcing her intention to leave. (Berger Exhibit #9). Her supervisors then called her in for a meeting to discuss her problems. (Berger Deposition, 100). One of her supervisors, Ms. Lucille DePalma, did not like the way her voice sounded on the air, and suggested that she take some lessons on how to improve it. Id. at 102. Ms. DePalma also stated that Ms. Berger did not have enough experience to handle a particular show ("Informe") because she had not worked on weekends, where the broadcast format is less structured and less supervised. Id. Ms. Berger said that she "welcome[d] the opportunity to" try the weekend work, and she was thereafter assigned such work. Id. at 102, 107. After she performed a particular Saturday show, the senior producer in the Brazilian Department applauded and congratulated her. Id. at 107-08. Also, after learning of Ms. Berger's expressed intention to leave the Agency, the assistant to the Director of Voice of America had personally called her to express her appreciation for her work and to assure her that she would get a grade raise. Id. at 148.
Ms. Rose Kobylinski, the remaining individual plaintiff, testified that some women expressed fear for her because she was participating in the suit. (Tr. 5/30/79, 158). The plaintiffs have not demonstrated the grounds for this expressed fear. Nor is there any evidence that Ms. Kobylinski suffered reprisals for her participation in this case.
The plaintiff's evidence does not establish the requisite policy or practice of discrimination. The plaintiffs chiefly rely upon the testimony of only six witnesses. Some (but probably not all) of these witnesses may have been able to substantiate individual claims of retaliation. However, there is no evidence of a general policy of retaliation in the Agency. The plaintiffs have presented no evidence linking these incidents. The alleged reprisals took various forms and came from various officials. In short, there is insufficient evidence to overturn this Court's October 24, 1979, Finding of Fact that there is an "absence of any pattern or practice of discrimination based on sex at the Agency at all relevant periods in this litigation." Medina v. Reinhardt, 222 U.S. App. D.C. 371, 686 F.2d 997, 1012 (D.D.C. 1979) (hereafter "slip op."). Therefore, the plaintiffs have failed to establish a prima facie case of class-wide discrimination in the form of retaliation.
THE COURT FINDS THAT THE AGENCY DISCRIMINATED AGAINST WOMEN IN HIRING
During the trial of this case the Court heard considerable testimony from statistical experts. Each side presented an expert who subdivided the Agency's workforce into occupational categories and sought to translate ("cross-map") each Agency category into a Census category. Thus, the experts agreed on the basic methodology involved in defining the relevant labor market. However, in some instances, they disagreed as to which specific Census categories they would compare to the Agency's occupational categories. In its October 24, 1979 Findings of Fact and Conclusions of Law, this Court held that the cross-mapping presented by both sides was insufficient to gain meaningful insight into whether the Agency's hiring practices were discriminatory:
The Court finds that both plaintiffs' and defendant's experts have failed to produce sufficiently precise labor-pool-availability figures whether nationally or locally. Due to the inherent unreliability of broad and general cross-mapping with a specialized variety of highly-skilled positions at the Agency as compared to the available Census and BLS [Bureau of Labor Statistics] job categories, the "cross-mapping" done here is of little or no value in the case at bar.
The Court concluded that the plaintiff class had failed to establish a prima facie case of discrimination under 42 U.S.C. § 2000e et seq.
The Court of Appeals reversed and remanded this part of the Court's decision. After reviewing the Supreme Court's holdings in International Brotherhood of Teamsters v. United States, 431 U.S. 324, 97 S. Ct. 1843, 52 L. Ed. 2d 396 (1977), and Hazelwood School District v. United States, 433 U.S. 299, 97 S. Ct. 2736, 53 L. Ed. 2d 768 (1977), the Court stated that this Court required too much precision in the use of statistics:
The standard of precision the district court demanded, far from being mandated by these cases, is unprecedented and unjustifiable, insofar as it results in a total rejection of the Census data as a basis for statistical comparisons to establish a prima facie case.
686 F.2d at 1005.
Noting that the Census has fewer occupational categories than the Civil Service system, the Court of Appeals stated:
We are satisfied that comparing Agency occupational categories to the broader Census categories is appropriate because all types of jobs the Census includes within any given Census occupational categories are sub-specialties of that occupation; thus, such aggregations retain "generally similar job skills" in common. Valentino v. USPS, 674 F.2d  at 68.