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HARRISON v. LEWIS

March 3, 1986

DENNIS L. HARRISON, et al., Plaintiffs,
v.
DREW LEWIS, et al., Defendants



The opinion of the court was delivered by: OBERDORFER

LOUIS F. OBERDORFER, United States District Judge

 MEMORANDUM

 In this action, female and black employees of the Maritime Administration (MarAd) claimed that MarAd engaged in systemic discrimination in hiring and promotions on the basis of sex and race in violation of Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq. 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 defendants had discriminated on the basis of sex. The parties then filed memoranda on the issue of relief, and on January 25, 1983, the Court entered an Injunction setting out the scope, and procedure for obtaining, relief. As to determination of individual affirmative relief, the Injunction contemplated the mailing of a notice to individual class members after which the following procedure applied:

 
(B) Determination of individual claims. Class members shall have thirty days from the date upon which the notice is mailed in which to file their individual claims. The claims must state specifically the basis for the claim and the relief sought. After all claims have been submitted, but not later than ninety days after the closing date for the submission of claims, counsel for the parties shall attempt to resolve all claims that have been made.
 
Any claims that cannot be resolved will be submitted to a Special Master to be appointed by the Court. In the adjudication of individual claims, the initial burden will be on the claimant to show, by a preponderance of the evidence, that he or she applied for a job or promotion or would have applied but for the discriminatory practices of defendant, and that failure to receive that job or promotion has caused the claimant some specific damage (e.g., a pay increase). The burden will then be on defendant to prove by clear and convincing evidence that the same employment decision would have been made even in the absence of the claimed discrimination. In the absence of such proof, the relief sought will be granted to the individual class member.

 Harrison v. Lewis, 559 F. Supp. 943, 955 (D.D.C. 1983).

 The parties have attempted to settle the individual cases, and have now filed a Joint Report of the Status of Individual Cases (filed Dec. 13, 1985). The claims of twelve plaintiffs remain to be resolved. In addition, the parties are in dispute as to the scope of relief available to one plaintiff. Motions as to the twelve remaining plaintiffs are now ripe for resolution. These are defendants' motion to dismiss certain individual claims and the parties' cross-motions for summary judgment as to individual claims. Although the Injunction indicated that the Court would appoint a Special Master at this stage of the proceedings, the motions as to individual claims involve only a limited number of issues which, once decided, will resolve each plaintiff's entitlement to affirmative relief. It thus does not appear necessary or efficient to appoint a Special Master. The Court will resolve the remaining liability issues and will direct the parties to attempt to reach agreement as to the amount due each plaintiff found by the Court to be entitled to relief.

 I.

 A. Motion to Dismiss

 Defendants move to dismiss certain individual claims on the grounds that a specific claim pressed was not originally listed on the plaintiff's claim form. Defendants claim that the following quote from the Injunction means that any claim not listed by a plaintiff on the claim form is forever barred:

 
Class members shall have thirty days from the date upon which the notice is mailed in which to file their individual claims. The claims must state specifically the basis for the claim and the relief sought.

 559 F. Supp. at 955. Indeed, as defendants argue, the claim form asked plaintiffs to identify the specifics of their claim. But, the request to identify the claim was couched with the phrase "if known", and the preamble to the form stated "You may be called on to cooperate with an evaluation of your claim by supplementing the information supplied here." Moreover, the form contained no warning that a failure to list a specific claim would forever bar a plaintiff from pursuing it. Defendants reviewed the form before it was sent and were aware that it contained no such language. And, such a requirement would have been harsh since plaintiffs were given only thirty days from receipt of the notice to return their form. Defendants, themselves, conducted a computer search for all vacancy announcements responded to by the plaintiffs who filed claim forms, and plaintiffs represent that all claims were identified in a 1984 interrogatory answer. Defendants thus cannot claim surprise or prejudice at the claims now pressed. In light of all the above circumstances, the purpose of the claim forms was properly understood to be to identify claimants, and not to bar claims. The accompanying Order will deny defendants' motion to dismiss.

 B. Summary Judgment Motions

 1.

 Several plaintiffs have failed to identify specific vacancy announcements for which they applied and were rejected, or were deterred from applying. Defendants point out that (1) plaintiffs have had MarAd's vacancy announcement files for years now; (2) computer searches of these claimants' applications have been undertaken by defendants, without success in locating vacancies applied for; and (3) specific reviews for such vacancies have also been made by MarAd, also without success. Defendants maintain that plaintiffs' failure to identify specific vacancies must mean that they did not exist, and thus that these plaintiffs are not entitled to relief.

 The Injunction required a plaintiff to show that "he or she applied for a job or promotion." 559 F. Supp. at 955. Such specificity is required to fashion appropriate relief. Without a vacancy announcement identified, the Court cannot assess a plaintiff's eligibility, qualifications, loss of pay, or the race of the selectee. At this point in the litigation, a plaintiff's failure to identify a specific vacancy announcement for which he or she applied or was deterred from applying must be presumed to mean that no such announcement existed. If no such job opening existed, then plaintiff could not have suffered discrimination in the competitive promotion process and thus is not ...


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