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MCKENZIE v. KENNICKELL

August 8, 1986

ALFRED U. McKENZIE, et al., Plaintiffs,
v.
RALPH E. KENNICKELL, JR., Defendant



The opinion of the court was delivered by: PARKER

 Barrington D. Parker, Senior District Judge:

 On January 30, 1981, the Court entered a final relief order in this class action proceeding brought by black employees of the Offset Press Section ("OPS") of the United States Government Printing Office ("GPO"). McKenzie v. Saylor, 508 F. Supp. 641 (D.D.C. 1981). Upheld with some modification by our Court of Appeals, McKenzie v. Sawyer, 221 U.S. App. D.C. 288, 684 F.2d 62 (D.C. Cir. 1982), the order provided for the appointment of a Special Master to conduct proceedings to determine the amount of monetary relief, if any, due individual class members. McKenzie v. Saylor, 508 F. Supp. at 656. While the final relief order set out some basic principles to be followed in these Teamsters hearings, *fn1" the exact procedures and governing standards to be employed by the Special Master were left for future consideration.

 Following the Court of Appeals decision, the plaintiffs submitted a proposed order of reference to Special Master. The government's response to the proposed order raised a number of objections, many of which were accepted by the plaintiffs and incorporated in a second proposed order. Several rounds of briefs followed on the remaining disagreements between the parties. Many of the issues raised were unique and complex, made even more so by the long and sometimes tortured history of this litigation. Meanwhile, counsel for the parties engaged in unfruitful attempts to resolve and settle the litigation. In October 1985, at the request of the Court, the government submitted a proposed order.

 The government has consistently suggested that the Court first resolve three major areas of disagreement and leave to further negotiation the settlement of a host of smaller, more technical issues. The first major area of dispute is whether the plaintiff class must be divided into two subclasses to reflect the fact that the administrative complaints alleging discrimination against journeymen and printing plant workers were filed at different times. The second concerns the "forward cutoff date" for the back pay proceedings; that is, the date after which vacancies in OPS may no longer be claimed as potentially available to class members. A third hotly disputed issue concerns the procedure for determining back pay for persons denied entry into training programs before 1972. Specifically, the parties disagree on how the proposed order should implement the Court's finding that GPO's consistent use of the predominately white Letterpress Transfer Program rather than the Offset Press Assistant Trainee Program to fill journeymen vacancies was discriminatory.

 At this date, the parties still have not yet reached a resolution of their differences. The delay in this matter has been costly to all parties, and given the need of the plaintiffs to receive the fruits of their successful challenge of GPO's hiring and promotion practices and procedures as set out in the earlier opinions of this Court and the Court of Appeals, it serves no useful purpose to delay further the initiation of the Teamsters hearings. Therefore, an order of reference will be entered in full based on careful consideration of the proposals and briefs of both parties. A discussion of the reasons for the resolution of the major areas of disagreement follows.

 A.

 Under our Circuit's ruling in Laffey v. Northwest Airlines, Inc., 185 U.S. App. D.C. 322, 567 F.2d 429 (D.C. Cir. 1976), only class members who could have filed a timely administrative complaint at the time that the class representative did so, are eligible for back pay relief. The government argues that the plaintiff class must therefore be divided into two subclasses to reflect the fact that the McKenzie complaint, alleging discriminatory treatment of his efforts to be promoted from his journeyman position to a supervisory post, was filed on March 12, 1973, while the Ross complaint, concerning his failure to be promoted to the journeyman level, was not filed until July 23, 1973. According to this reasoning, printing plant workers who left GPO before July 23, 1973 are ineligible for individual relief, while journeymen only need to have been employed as of February 10, 1973. The division into subclasses would also affect the amount of monetary relief available to individual class members because back pay can be awarded only for a two-year period preceding the filing of the administrative complaint.

 B.

 The next major controversy concerns the "forward cut-off date" for the back pay proceedings. With respect to workers seeking promotion to journeyman positions, there is no dispute. Back pay can be sought only for vacancies occurring through December 31, 1971. See McKenzie v. Sawyer, 684 F.2d at 74. The parties differ, however, on the forward cut-off date for uprate and supervisory positions. Plaintiffs argue that class members should be able to claim positions that became available before January 30, 1981, the date of the Court's final relief order. The government argues that the date should be January 1, 1974, since the Court's order granting summary judgment, and the Court of Appeals' review of that decision, were based on statistical evidence of discrimination only through 1973.

 In granting final relief in 1981, a finding was made that the discriminatory practices condemned in 1977 had not ceased. 508 F. Supp. at 643. This finding was based on additional statistical data and the briefs and argument of both parties. Without such a finding, the extensive relief order entered at that time and approved in large part by the Court of Appeals would not have been appropriate. While it is true that the review of the summary judgment proceedings was scrupulously limited to a consideration of the record that was before this Court at the time of its 1977 decision, see 684 F.2d at 67-70, no such limitation was stated or implied with respect to the appropriate relief once liability had been established. Indeed, the Court of Appeals in specifically upholding injunctive relief, stated: "We affirm the district court's decision that sweeping changes were needed in promotion practices at OPS. At the beginning of 1981, nearly four years after the decision on liability in this case, no blacks held foreman or assistant foreman positions in OPS." 684 F.2d 62 at 79.

 The government cites no case that holds that in a Title VII class action relief must be limited to the period under consideration at trial or on summary judgment. Its argument consists primarily of attempting to distinguish the cases cited by the plaintiffs for the contrary proposition. The clear implication of the case law is that the period for which liability is found does not necessarily determine the period for which relief can be granted. See Domingo v. New England Fish Co., 727 F.2d 1429, 1444 (9th Cir. 1984) (allowing recovery for discrimination occurring after the date of the liability decision); United States v. Lee Way Motor Freight, Inc., 625 F.2d 918, 945 (10th Cir. 1979) (upholding Special Master's consideration of claims arising after period scrutinized in trial court liability finding); Powell v. Georgia Pacific Corp., 535 F. Supp. 713, 725-26 (W.D. Ark. 1982) (ordering back pay until the date of the liability decision, although the trial ended over two years earlier); Kyriazi v. Western Electric Co., 461 F. Supp. 894 (D. N.J. 1978) (liability decision); order of reference entered 465 F. Supp. 1141, 1156 (D. N.J. 1979) (back pay available until date of final judgment although trial concluded ten months earlier). *fn3"

 An award of back pay is an equitable remedy that must be applied with an eye toward achieving the statutory purposes of Title VII -- the eradication of discrimination and the compensation of persons who have suffered as a result of that discrimination. See Albemarle Paper Co. v. Moody, 422 U.S. 405, 421, 45 L. Ed. 2d 280, 95 S. Ct. 2362 (1975). The forward cut-off date proposed by plaintiffs is more in keeping with these purposes than the date advocated by the defendants. It will more completely compensate individuals who have suffered as a result of GPO's discriminatory policies and practices. *fn4"

 C.

 The final issue of major disagreement between the parties concerns the procedure for determining back pay for persons denied entry into training programs before 1972. One of the GPO's practices found to be discriminatory in the 1977 summary judgment was the consistent use of the predominantly white Letterpress Transfer Program rather than the Offset Press Assistant Trainee Program to fill journeyman vacancies. See McKenzie v. McCormick, 425 F. Supp. 137, 141 (D.D.C. 1977). Paragraph III(B)(6) of the final relief order therefore provided that the Special Master was to consider the impact of this practice in determining the number of available trainee positions for the back pay proceedings. On the basis of interrogatory responses by the government, plaintiffs argue that the order of reference should specifically designate 22 additional training vacancies to be considered available. These positions are described by plaintiffs as vacancies in the OPS training programs that would have existed but for the GPO's discriminatory practices. Because these positions are "hypothetical," plaintiffs argue that the government's opportunity to rebut an individual class member's claim must be limited to the possibility of demonstrating, by clear and convincing evidence that the claimant would not have qualified for the training program or that a better qualified non-class member who was eligible for the program would have been selected.

 The government asserts that the plaintiffs' suggested procedure on this issue impermissibly prevents it from avoiding back pay liability by demonstrating that the individual actually selected for a position was better qualified than the class claimant. See Teamsters, 431 U.S. at 371-72; McKenzie v. Sawyer, 684 F.2d at 78. It argues that it must be able to compare the qualifications of the class member to the qualifications of the letterpressman selected for the journeyman opening.

 Defendant's position misses the point of the Teamsters requirement and of Paragraph III(B)(6). Teamsters held that individual hearings must be held to determine "which of the minority employees were actual victims of the company's discriminatory practices." 431 U.S. at 371-72. Hence the requirement in most cases that the government be allowed to prove that the person selected for the disputed position was better qualified than the class member seeking back pay. A black class member who wasn't hired because a white was better qualified for the position is not an "actual victim" of discrimination.

 It is essential to remember that these hypothetical positions are training program positions, not the 22 journeyman positions that the workers in the Letterpress Transfer Program filled. Thus, the government can not be permitted to rebut a class member's claim to one of these positions by relying on the qualifications of a letterpressman who was not eligible for the training position at all. In fact, no actual selectee's qualifications are relevant with respect to these 22 positions, since the positions were never made available due to GPO's discriminatory practices. *fn5"

 D.

 Another issue, while not identified as "major" by the parties, seems worthy of mention, namely, attorneys' fees for counsel representing individual class members in the Teamsters hearings. While the government's proposed order of reference leaves the question of attorneys' fees to be decided by the Special Master at the conclusion of each individual hearing, it has argued strenuously in its briefs that fees should be awarded only to those individuals who ultimately are awarded back pay. It relies primarily on Hensley v. Eckerhart, 461 U.S. 424, 103 S. Ct. 1933, 76 L. Ed. 2d 40 (1983), where the Supreme Court held that time spent pursuing unsuccessful claims should not necessarily be compensated in an award of attorneys' fees to a prevailing party. Plaintiffs, in contrast, contend that all individuals who bring back pay claims should be reimbursed for their legal expenses.

 This Court has already held that plaintiffs are the "prevailing party" in this litigation and are entitled to reasonable attorneys' fees under 42 U.S.C. ยง 2000e-5(k). McKenzie v. Saylor, 508 F. Supp. at 658. The individual hearings mandated by the final relief order and more fully outlined in the accompanying order of reference are simply the means by which individual plaintiffs are to receive the remedy due them because they have been successful in this class action litigation. If the plaintiffs had not succeeded on the merits, there would be no individual hearings. Thus, these hearings are not unrelated claims that should be separated from the class claims for purposes of a fee award. *fn6" Moreover, even unsuccessful individual claimants have benefited from the substantial injunctive relief contained in the 1981 order. Accordingly, under the order of reference, the government shall ...


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