The opinion of the court was delivered by: GREENE
This case is before this Court once more following decisions by the Court of Appeals and the U.S. Supreme Court and a remand to this Court by the Supreme Court.
In Trout v. Hidalgo, 517 F. Supp. 873 (D.D.C. 1981), this Court held that the plaintiff class
had established a prima facie case of sex discrimination, and that defendants had failed to rebut that prima facie case. See Texas Department of Community Affairs v. Burdine, 450 U.S. 248, 67 L. Ed. 2d 207, 101 S. Ct. 1089 (1981). The Court's ruling rested primarily, but not exclusively, on the greater reliability of the plaintiffs' statistical evidence.
The Court of Appeals, while affirming the ultimate decision on liability, held that this Court's analysis of plaintiffs' and defendants' statistical evidence was erroneous in two respects. First, the Court of Appeals held that Title VII
liability could not properly be premised upon the continuing effects of discriminatory conduct occurring before March 24, 1972, when Title VII first became applicable to the federal government. Second, the court decided that defendants could not be held accountable for the salary and grade placements of their employees if those placements were predetermined by the employees' previous salary and grade placements at another federal agency. Trout v. Lehman, 226 U.S. App. D.C. 357, 702 F.2d 1094, 1103-05 (D.C. Cir. 1983). Plaintiffs' principal statistical evidence (the Straszheim study) included data of both types, and the Court of Appeals deemed this Court's decision to be erroneous insofar as it considered these two types of data to be legally relevant. Despite these defects, however, the Court of Appeals determined that the Straszheim study created a "justifiable inference" of class-wide discrimination in promotion, see 702 F.2d at 1105, and that defendants had not rebutted this prima facie case. See 702 F.2d at 1105-06. This Court's finding of class-wide discrimination in promotion was accordingly affirmed while its finding of discrimination in initial grade placements was reversed. 702 F.2d at 1108.
On certiorari, the Supreme Court held that this Court's finding on the ultimate issue of liability could not be upheld without a remand "for findings of fact, based on new evidence if necessary, on the question what evidentiary value respondents' and petitioners' statistical evidence has in light of the Court of Appeals' conclusions concerning [pre-1972 and outside agency discrimination]." Lehman v. Trout, 465 U.S. 1056, 79 L. Ed. 2d 732, 104 S. Ct. 1404 (1984). The Court remanded the case here because it was "unsure whether the trial court would have found discrimination absent its erroneous understanding [of the law]." Segar v. Smith, 238 U.S. App. D.C. 103, 738 F.2d 1249, 1280 (D.C. Cir. 1984). The case is here today in that posture. See Pullman-Standard v. Swint, 456 U.S. 273, 292, 72 L. Ed. 2d 66, 102 S. Ct. 1781 (1982).
Following the remand, defendants have moved to present additional statistical evidence that will, they contend, establish defendants' innocence of all charges of discrimination. Plaintiffs argue that additional evidence is not required, and that the Court should, once again, find defendants liable under Title VII on the basis of the present record.
This Court's task has been made considerably easier by the Supreme Court's recent decision in Bazemore v. Friday, 478 U.S. 385, 54 U.S.L.W. 4972, 92 L. Ed. 2d 315, 106 S. Ct. 3000 (U.S. 1986). The Court there implicitly disagreed with what appears to be the Court of Appeals' holding in this case that the continuing, post-1972 discriminatory effects of pre-1972 discrimination could not generate liability under Title VII. Bazemore, like the instant case, involved a regression analysis containing "salary figures which reflect the effect of pre-Act discrimination." 54 U.S.L.W. at 4975. The Supreme Court found the use of those salary figures to be proper, distinguishing between giving legal effect to pre-1972 activities -- which is not allowed -- and the permissible use of such activities to support findings of discrimination on the basis that the existing pay structure represents a mere continuation of an earlier, discriminatory structure. 54 U.S.L.W. at 4974-75 n. 6. That is also the distinction which this Court sought to make when the present case was here for the first time. See 517 F. Supp. at 879-80, where the Court noted that "although discriminatory conduct which occurred solely prior to March 24, 1972 is not directly actionable in Title VII suits . . . 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 [citing Hazelwood ]." In short, under Bazemore, the Straszheim study's use of similar data is now clearly acceptable.
The Court of Appeals also reversed this Court's conclusion that defendants had the burden of showing that they lacked control over the initial grade placements of employees transferred from other agencies at predetermined grades and salaries. 702 F.2d at 1105. It is plain from the Court of Appeals decision that no class member may predicate liability on her initial grade and salary placement if that placement was made by an outside agency. Just as clearly, however, liability may be predicated upon the defendants' subsequent discriminatory promotion decisions. The question to be answered, then, is whether inclusion of data on initial placements in the Straszheim study fatally undercuts its evidentiary worth in the promotion context as well. The Court of Appeals believed that the plaintiffs' statistics "created a justifiable inference that the defendants had 'failed to promote equitably individuals who were discriminated against at hiring.'" 702 F.2d at 1105 (quoting 517 F. Supp. at 885). That was and is this Court's view of the evidence as well.
This Court's initial determination did not represent a holding that defendants could be found liable for grades and salaries predetermined by another agency. In fact, the Court took pains to note that "even if all authority for improper initial grade placement were assigned to rest with the Civil Service Commission, the resulting disparities in grade level remaining over several years could still be properly attributable to [defendants]" inter alia if they "failed to promote equitably individuals who were discriminated against at hiring." 517 F. Supp. at 885. The Straszheim study, it was found, "established a prima facie case of sex discrimination in initial grade placement and promotion." 517 F. Supp. at 884 (emphasis added).
The plaintiffs' prima facie case, which may be established by the Straszheim study alone, see, e.g., Castaneda v. Partida, 430 U.S. 482, 51 L. Ed. 2d 498, 97 S. Ct. 1272 (1977); Segar v. Smith, 738 F.2d at 1278, was greatly reinforced by non-statistical evidence of discrimination:
There was testimony from a number of present and former employees of NARDAC concerning various discriminatory practices, long after 1972, including a denial of supervisory opportunities to women, assignment of women to lower level positions, and the preselection of men for supervisory positions. The Court was especially impressed by the testimony of several former employees of the agency who were very credible witnesses and who related both specific instances and general impressions of discrimination against women at NARDAC. Some of these individuals left NARDAC for other federal employment and thereafter advanced to higher grades far more rapidly than had been possible at NARDAC.
517 F. Supp. at 887 (footnotes omitted). None of those findings is affected by either of the appellate decisions in this case. The Court has little hesitation, in view of the foregoing, in again concluding that plaintiffs have established a prima facie case of class-wide sex discrimination in promotions. The next question is ...