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PALMER v. SHULTZ

July 2, 1987

Alison Palmer, et al., Plaintiffs,
v.
George P. Shultz, Defendant; Marguerite Cooper, et al., Plaintiffs, v. George P. Shultz, Defendant



The opinion of the court was delivered by: SMITH, JR.

 John Lewis Smith, Jr., United States District Judge

 These consolidated cases involve a class action filed against the Department of State alleging sexual discriminatory practices against female Foreign Service Officers (FSO's) and FSO applicants in various aspects of employment in violation of Title VII of the Civil Rights Act of 1964, as amended in 1972 to cover employment discrimination in the federal government. See 42 U.S.C. § 2000e et seq. The plaintiff class is composed of all female FSO's employed by the Department of State at any time since February 4, 1976 and all female applicants to become FSO's since February 4, 1976. *fn1" The individual plaintiffs are Alison Palmer, Mary A. Ryan, Ellen Shippy, Marguerite Cooper, Mary Lee Garrison, Mary Finrow, Laurel Cooper, Mary Hartman, and Julie Ann McGrath.

 In particular, the plaintiffs alleged sexual discriminatory practices in: (1) hiring, (2) assignments, (3) promotions, (4) performance evaluations, (5) awards, and (6) class at hire. Plaintiffs' hiring claims were settled prior to trial. *fn2" Trial on the remaining claims was bifurcated into liability and remedy phases. Following the liability phase of the trial, the District Court entered judgment for the defendant and dismissed the plaintiffs' remaining claims on the ground that no unlawful discrimination had occurred. Palmer v. Shultz, 616 F. Supp. 1540, 1561 (D.D.C. 1985).

 Therefore, upon consideration of the entire record herein and in accordance with the Court of Appeals March 1987 opinion, the Court enters the following findings of fact and conclusions of law regarding the seven personnel issues raised on appeal.

 FINDINGS OF FACT

 1. The Foreign Service of the United States is charged with assisting "the President and the Secretary of State in conducting the foreign affairs of the United States." 22 U.S.C. § 3901(a)(1), § 3904.

 2. The Foreign Services is administered by the Secretary of State under the direction of the President. 22 U.S.C. § 3921(a).

 3. While performing its many varied duties through the world, the Foreign Services is responsible for maintaining the best possible relations with the government to which accredited.

 Cone at Entry

 4. Prior to the 1960's, FSO's were hired as generalists although many but not all developed a field of specialization later in their careers. In the early 1960's, the Department decided that Foreign Services Officers should be selected for hire into a particular cone, that is, functional field of specialization, while continuing to be required to show a generalist aptitude because the generalist selection method had resulted in a surplus of political and political/economic officers and an insufficient number of officers in the other fields. In addition, management believed that more specialized expertise was required to meet the increasingly complex demands placed on the FSO corps.

 5. Four "cones" of specialization were established:

 (a) Administrative officers are responsible for support operations of U.S. embassies and consulates.

 (b) Consular officers work closely with the public providing assistance to American travelers and residents abroad, issuing visas, and other immigration related issues.

 (c) Economic officers deal with economic issues that impact on U.S. interests, including trade, energy, aviation, and maritime matters. These officers perform their duties by both gathering and reporting data back to the U.S. and by taking part in economic negotiations with foreign entities.

 (d) Political officers analyze and report on political questions which affect U.S. interests. They gather data to report back to the U.S. while also maintaining close contacts with foreign political and labor leaders.

 6. Since establishment of the cone system, officers have been assigned to a cone at the time of hire. The officer's cone is reflected as the officer's primary skill code. A cone may include individuals with a number of different primary skill codes. For example, political officers, political-military affairs officers, and labor-political affairs officers all constitute different skill codes, yet all are within the political cone.

 7. Since the institution of cones in the early 1960's, it has not been the policy of the Department to encourage FSO's to change cones. This is due to the fact that recruitment and appointment have been conducted by cone, in accordance with, inter alia, anticipated work-force needs. If substantial numbers of officers changed cones, this could result in the imbalances which had previously existed. Except for a short period from mid-1977 to mid-1978 when there was a freeze on cone changes, however, a procedure has existed which specified certain prerequisites for changing cones.

 9. New procedures were adopted in June 1978 (Department Notice: Primary Skill Code Changes, June 8, 1978) which permitted cone changes under certain specified circumstances. Those procedures were in effect until May 1979.

 10. New procedures were again adopted in May 1979 (Department Notice: Procedures for Primary Skill Code Changes, May 22, 1979). Those procedures have been in effect since that time and continue to constitute the only method available for changing cones.

 11. The majority of FSO's enter the Foreign Service pursuant to the written and oral examination process. Beginning with the 1975 written examination, candidates were tested in all four functional fields on the written examination.

 12. Between 1975 and 1979, the Junior Officer Division of the Foreign Service Career Development and Assignment Office of the Bureau of Personnel (FCA/PER) was responsible for the conal assignment of junior officers. FCA/PER would review each candidates' file, looking at his or her academic and work experience, written and oral examination results, and stated conal preference, if any. Based on this review, FCA/PER would select a cone for the candidate. If a candidate disagreed with the conal designation, he or she was free to discuss the option of obtaining a different designation.

 13. Those FSO's who entered the Service pursuant to the lateral entry programs acquired cone designations as part of the lateral entry process. Lateral entry applicants themselves selected, in advance, the functional field in which they wished to compete and were evaluated only for that specific cone.

 14. Candidates attempting entry into the Foreign Service pursuant to the Affirmative Action Junior Officer Program (AAJOP) and Mustang Program obtained their initial cone assignments in a manner similar to other junior officers in that the Foreign Service Career Development and Assignment Office (FCA) matched the applicant's background and experience with the requirements of the four functional fields. In addition, since 1984, AAJOP applicants must also take the written examination.

 15. Beginning in 1980, candidates who pass the written examination, the assessment process, and the remaining steps of the selection procedure are placed on rank-order registers for all cones for which they passed the corresponding functional field test in the written examination. Actual offers of appointment are made in rank order, with the person who has the highest score on any conal register being offered the first appointment.

 16. Candidates are free to accept or decline an offer, but are not guaranteed that a subsequent offer will be made, either in the same cone or in any other cone in which the candidate is eligible. If a candidate is reached on more than one register in advance of a convening of a given initial training course, he or she may choose the cone of appointment.

 Use of Statistics

 17. A statistical disparity between the selection rates of men and women for a particular job or job benefit has one of three possible causes: 1) unlawful discriminatory animus, 2) legitimate and non-discriminatory cause, or 3) the disparity may simply be a product of chance. Palmer, 815 F.2d at 90-91. A statistical analysis of a disparity in selection rates can reveal the probability that the disparity is merely a random deviation from perfectly equal selection rates. Statistics, however, cannot entirely rule out the possibility that chance caused the disparity. Nor will they be reliable if not accurately drawn or focused on a proper labor pool.

 18. The terms "one-tailed" or "two-tailed" refer to the "tails" or ends of a bell-shaped curve which represents in graph form a "random normal distribution." The area under any segment of the bell curve measures the probability of that range of results occurring randomly. The percentage area underneath the bell curve within one standard deviation distance from the mean of a normal distribution is always the same for normal distributions. Thus, the probability of a result randomly occurring that measures within one standard deviation of the distribution (either greater or lesser than the mean) is the same for all normal distributions: 68.26%. Palmer, 815 F.2d at 93.

 19. But for every deviation from the mean of a normal distribution measured in a certain number of standard deviations, there are two distinct ways of referring to the probability of that result occurring randomly. If fewer women than men were selected for a particular job and this disparity measures 1.96 standard deviations, we can ascertain the probability that women by chance would be underselected to this extent or greater. This probability corresponds to the area between 1.96 standard deviations and the end of the bell curve representing underselection of women. Standard statistical tables reveal that this probability is only 2 1/2% on this "one-tailed" test.

 20. However, if a disparity of 1.96 standard deviations is viewed as the probability that there was either an underselection or an overselection of women, that disparity corresponds to the area under the bell curve between 1.96 standard deviations and both extremes of the curves. This "two-tailed" approach equates to a probability of 5% that women were underselected or overselected.

 Awards

 21. The Department of State administers an Incentive Awards Program for the Foreign Service. Plaintiffs' expert analyzed one segment of the Department's program, the Honors Awards, which includes the Distinguished Honor Award, the Superior Honor Award, and the Meritorious Honor Award.

 22. "Honor Awards recognize outstanding achievement and bestow singular honor and official recognition to an individual or group. As appropriate, honor awards may be supplemented by a cash payment or meritorious service or quality increase, if the employee is nominated for such increase." 3 FAM 642.2.

 23. Plaintiffs' expert analyzed the three awards by sex for the period 1976 to 1983. The statistics show no statistically significant disparity between the number of men and women receiving either the Distinguished Honor Award or the Meritorious Honor Award.

 24. In regards to the Superior Honor Award, plaintiffs' expert produced statistics indicating that 4.8% of the award recipients were females, although 10.1% of the class 1 through 5 FSO's during the time period were females. These results indicate that twice as many women would be expected to receive the Superior Honor Award as actually received it. The difference measures 3.1 standard deviations and would occur as a product of chance in a non-discriminatory system only 1 time in 500 (two tailed).

 25. Defendant has presented no statistical evidence related to plaintiffs' showing of discrimination in awards.

 Assignments

 26. Plaintiffs claim that women have been disproportionately overassigned to the consular cone and underassigned to the political cone during the relevant time period, 1976-83, as a result of the disparate impact of the political functional field portion of the Foreign Service Entrance Examination.

 28. During the same 1975-80 time period, again looking only at those FSO's who entered the Service through the exam procedures, plaintiffs' expert, relying on the same ETS data, found that 17.6 fewer females were assigned to the political cone than would be expected based on their proportion among FSO hires. This difference measures 3.29 standard deviations.

 29. Plaintiffs' expert discounted the level of educational attainment at hire and educational major as explanations for the discrepancy in cone assignments of exam applicants.

 30. Plaintiffs' expert contended that the scores received by candidates on the four functional field tests of the Foreign Service written examination differed by sex and were related to cone assignment. The scores from the 1975-80 written examination indicated that women hired between 1976 and 1983 had significantly lower average scores on the political functional field test than men, but that the average score of men and women on the consular functional field test was about equal.

 31. A logistical regression performed by plaintiffs' expert on the cone assignment of those persons who took the 1975-80 written examinations and were hired between 1976 and 1983, which took into account the effect of level of educational attainment, major field of study, sex, and functional test scores on cone assignments, indicates that test scores substantially explain cone assignments. When allowing for the functional field test scores, the analysis indicates no statistically significant disparity in assignment of females and males to the consular cone. As to assignment to the political cone, the disparity measures only 1.66 standard deviations.

 32. The plaintiffs produced no statistical analysis regarding the disparate impact of the examination on women other than those who took the examinations between 1975 and 1980 and were subsequently hired between 1976 and 1983.

 33. The accuracy of the ETS data on which the plaintiffs' statistical analysis was based was not challenged by the defendant.

 34. On the 1973 and 1974 examinations, a candidate selected one functional field test for which she wished to be considered for appointment to the Service. Beginning in 1975, all FSO's were required to take all four functional field tests.

 35. FSO candidates were not asked for their conal preferences after 1974. However, if a conal preference was given by the applicant, the preference was considered along with the candidate's academic and work experience and written and oral examination results when assignments were made. If the candidate disagreed with the conal designation, he or she was free to discuss the option of obtaining a different designation.

 36. Defendant contends that women have a preference for the consular cone which explains the disparities in cone assignments.

 37. Defendant's expert indicates that the government's preference study which is based on the preferences of women who were hired between 1976 and 1983 and who took the 1973 or 1974 examination documents a pattern of conal preference for FSO's in 1973 and 1974 which, when projected for 1975-1983, establishes that female FSO's were proportionately overassigned to the political cone in relation to their preferences during 1975-83.

 38. The defendants' preference analysis is not persuasive. None of the FSO's included in the plaintiffs' proof are covered by the defendant's study. Instead, the defendant attempts to establish the preferences of 1975-80 test takers by relying on projections based on a preference study based on 1973-74 test takers. However, these projections are of doubtful relevance to defendant's argument because the 1973-74 test takers were allowed to select only one of four functional fields in which to be tested and the 1975-80 test takers were required to test in all four fields. As a result, the preferences of the 1973-74 test takers were "pre-test" preferences which may or may not have been influenced by the applicant's perception of the relative difficulty of testing and subsequent assignment in the political or consular cones. Nonetheless, they are probably somewhat relevant if used to establish the expected "pre-test" preferences of the 1975-80 applicants. However, projections on 1973-74 "pre-test" preferences are not relevant to establishing the "post-test" preferences on which defendant must rely in order to show that the disparity in 1976-1983 consular and political assignments of women resulted from a disparity in assignment preferences. The defendant relies on this Court's finding that although conal preferences were not solicited after 1974, a stated conal preference, if any, was considered along with academic and work experience as well as test scores when assignments were made to establish that preferences were a substantial factor in the assignment process. However, this volunteered preference would necessarily be a "post-test" preference, one made after taking into account the results of the entrance examination, including the political functional field portion which the plaintiffs challenge as having disparate impact. This "post-test" preference is necessarily tainted if the test is an illegal one. Even if the defendant had introduced a favorable statistical correlation between 1975-80 "post-test" preferences of women and 1976-83 assignments of women to the political cone, that showing would do nothing to rebut a finding of discrimination based on the plaintiffs' showing of disparate impact in the examination because the challenged test would have had a direct hand in determining the "post-test" preferences on which the defendant would be relying. Indeed, if the disparate impact of the functional field portion of the test were so extreme that 100% of the women taking it did extremely poorly, it is conceivable that 100% of the women taking that test would prefer to not be assigned to that cone. It is reasonable to assume that the defendant would grant those requests because of the low scores. However, it is illogical to conclude that it was preference rather than the disparate impact of the test which resulted in those assignments. In the same vein, the defendant could not rely on hypothetical "pre-test" preferences based on the 1973-74 study to establish that preference accounted for the assignment disparity without a showing that there was a direct correlation between "pre-test" preferences and "post-test" assignments. Not only did the defendant not even request preferences from its 1975-80 applicants but any preferences which were volunteered were "post-test" preferences and even they did not play a substantial role in determining assignments to the political cone.

 39. Defendant did not rely on a showing that the political functional field test was job related.

 40. FSO's hold a personal rank (class). In addition, each position that an FSO might hold is classified as being at a certain grade level or rank. FSO's can be assigned to positions which are above or below their personal rank.

 41. Each position that an FSO might hold is either classified as being within one of the four main cones or as an "inter-functional" position. FSO's are generally assigned to positions within their own cone, although "out-of-cone" assignments are permitted.

 42. FSO's are assigned to new positions on a frequent basis, generally every two to three years. These changes in job assignments almost always entail changes in duties and frequently, changes in location. Each such assignment becomes a part of the officer's employment record.

 43. FSO's are required by law to be available for service worldwide. While serving overseas, FSO's may be assigned to one of approximately 260 posts located around the world or they may be detailed to other United States government agencies, international organizations, or private sector organizations. While in the United States, FSO's may be assigned to positions within the Department of State, detailed to other federal agencies, assigned to training or loaned to state or local governments.

 44. Since 1975, FSO assignments have been subject to the Open Assignment Policy as set forth in Standard Operating Procedures, No. A-1 (revised 1/14/77) and Standard Operating Procedures, No. A-1 Addendum (revised 1/7/77), recently superseded by Standard Operating Procedures, No. A-1 (approved 9/83).

 45. Under the Open Assignment Policy, all position vacancies are advertised in advance to all employees through worldwide cables permitting everyone to "bid" on the positions they desire. Officers, as they are due to complete their assignments, send a bid list of their preferences to their CDO. These preferences are consolidated for each available position and presented to the appropriate regional or functional bureau in the form of a "bid book," which lists all positions and the name of all bidders. Assignment officers, who represent the interests and preferences of the geographic and functional bureaus in which the positions are located, receive recommendations of candidates from the bureaus. In developing their recommendations, the bureaus review the list of bidders and solicit information about them from persons working inside or outside the bureau. The bureau preferences are transmitted by the assignment officers to the CDO's, who then submit lists of candidates to assignment panels. Assignment panels are composed of CDO's and assignment officers.

 46. Since 1975, the assignment procedures have tended to increase the authority of the central personnel system, and have provided the bureaus and posts much influence over the assignment of officers.

 47. In addition to the formal procedures for assignments described above, officers often "work the system," that is, use the influence of their former colleagues and supervisors to make themselves better known to the bureaus and posts in order to obtain the assignments they desired. No testimony was presented that these informal procedures, in themselves, discriminated against female FSO's. To the contrary, several of plaintiffs' witnesses testified that they had worked the system successfully to obtain their positions.

 48. Officers are free to bid on any position compatible with their class and the completion date of their current tour, though FSO's are not permitted to bid on positions more than two classes above or below their present class. Assignments to positions above the officer's personal grade are known as "stretch" assignments and are highly sought since employees generally anticipate that if they perform effectively in a position rated above their present grade, their chances for promotion are considerably enhanced. "Down-stretches," assignments below an officer's personal class, are also possible. Stretch and down-stretch assignments are always made with the concurrence of the individual officer. Simply because an officer bids on a stretch or down-stretch assignment does not mean he or she will receive the assignment.

 49. For the most part, the Foreign Service relies on a bottom entry career based system, with the majority of individuals entering the service at the most junior ranks, and working their way up. While a certain number of people do enter the Service laterally, the Service depends on junior members working their way up through the system to fill the higher ranks. Testimony has been offered that it takes anywhere from fifteen to twenty years before an FSO enters the higher ranks from which ambassador candidates are drawn.

 50. In support of their claim of underassignment of women to the position of DCM, plaintiffs rely on their expert's analysis of assignments of men and women to high visibility senior level positions. Plaintiffs' expert analyzed six high-level positions and determined that only in the position of DCM did a significant disparity arise. Those figures indicated that nine women were appointed DCM between 1972 and 1983 out of a total of 586 appointments. Plaintiffs' expert calculated that the expected number of women appointed during that period, based on the number of women in the grade levels from which DCM's were chosen, was 26.8. The difference between the actual and expected number of women measures 3.54 standard deviations which means that the likelihood this occurred by chance is 1 in 2,500 (two-tailed). Plaintiffs' expert analyzed only those six positions requested by plaintiffs, conceding he did not know if there were other high-visibility positions that should have been analyzed. The expert found no significant male-female disparity in assignment to five of the six positions studied.

 51. Defendant has asserted that plaintiffs' statistical evidence is insufficient because there was no significant underappointment of women to other high-visibility positions.

 52. Defendant has claimed plaintiffs' statistical evidence is flawed because it was based on the time period between 1972 and 1983 rather than the period between 1976 and 1983. However, defendant has failed to show that the ...


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