The opinion of the court was delivered by: PRATT
JOHN H. PRATT, UNITED STATES DISTRICT JUDGE.
In September, 1987 the court conditionally certified a class representing all black non-attorneys in the Tax Division who were employed by the Division on or after June 5, 1984 and whose claims of systematic discrimination were substantially identical to those of the representative plaintiff Willie Mayfield. Within that class the court conditionally certified two subclasses of individuals: those alleging systematic discrimination in the Tax Division's competitive promotion decisions (subclass A) and those alleging systematic discrimination in the Tax Division's reclassification decisions (subclass B). With respect to subclass A, the court reaffirmed its April 24, 1987 order that subclass A includes only those plaintiffs who, like Mr. Mayfield, bypassed the competitive promotion process because of an alleged sense of "futility." Although cognizant that evidence produced to prove systematic discrimination will touch on issues common to black non-attorneys who actually entered the formal competitive selection process, the court declined to expand subclass A to include those individuals. The court reasoned that, unlike possible discrimination claims by those who actually applied for competitive promotions, Mayfield's claims must be proved with evidence demonstrating it would have been futile to apply for a promotion. Thus, what 'caused' Mayfield to forego the competitive process is at issue in subclass A. With respect to subclass B, the court permitted Mayfield to represent both reclassification applicants and non-applicants on this discrimination charge because Mayfield actually sought advancement through this method. This class was limited, however, to those individuals who as of June 5, 1984 were at the top of their career ladders, or those who, since June 5, 1984, had reached the top of their career ladders. Finally, the court ordered that either party could move to alter or modify the conditional certification order if later claims or defenses so warranted.
The court also outlined what evidence defendant could introduce to defeat plaintiffs' claims of systematic discrimination at Stage I of the proceedings. At this stage the common issues of the actual existence of a discriminatory system of promotion or reclassification are litigated. Establishing that it was not futile to apply for a promotion in the Tax Division would defeat plaintiffs' subclass A discrimination claims. The court contemplated that subclass B's discriminatory reclassification claims, based largely on statistical evidence, could be rebutted by factually specific data.
At this juncture the court has before it defendant's Motion for Summary Judgment against subclasses A and B. In the alternative, defendant requests the court to reconsider its certification of subclass B or to certify that question to the Court of Appeals under 28 U.S.C. § 1292 (b). In its opposition to defendant's motion, plaintiffs, for the third time, request reconsideration of the representative restrictions placed on subclass A or, alternatively, certification to the Court of Appeals under 28 U.S.C. § 1292 (b). We discuss the merits of each motion in turn.
In its attack on subclass A, defendant's Motion for Summary Judgment asserts that it is not now nor has it ever been futile for blacks to apply for promotion in the Tax Division. In support of this position defendant states that "of the 140 non-attorney competitive promotion vacancies filled in the Tax Division since June 5, 1984, 56% were filled by blacks, one of whom was Mayfield himself. The Tax Division also states that since 1980,
51% of non-attorney competitive promotions have gone to blacks although blacks constituted only 48% of the work force. These statistics, the Tax Division asserts, combined with the courts' narrow application of the futility doctrine, see Int'l Brotherhood of Teamsters, et al. v. United States, 431 U.S. 324, 52 L. Ed. 2d 396, 97 S. Ct. 1843 (1976), demonstrate the "absence of a futility claim" and entitle the defendant to summary judgment as a matter of law.
In opposition to defendant's motion, plaintiffs rely on a number of affidavits, primarily anecdotal in nature, which are intended to show specific acts of discriminatory promotion practices utilized in the Tax Division.
They also offer the deposition of the Tax Division's Executive Officer as proof that the Tax Division's white supervisors were cognizant of plaintiffs' desires for promotions. According to plaintiffs, these affidavits reveal that black employees were discouraged from applying for promotions. Plaintiffs assert that "at a minimum" they have presented proof "sufficient to raise a factual question for trial concerning whether it was futile for black non-attorney employees in the Division to apply for promotions." (Plaintiffs' Brief at 11-12). Plaintiffs argue that defendant's statistics are "highly selective," disclose only the "mere frequency of undifferentiated and unexplained promotions," and do little to elucidate the detrimental effect of improper job postings and "detailing" on blacks in the department. Faced with these "contrary proofs," plaintiffs assert that defendant has not proved the absence of futility.
At the heart of this case rests plaintiffs' allegations that the Tax Division discriminated against members of subclass A with respect to promotions and training. As this case presently stands, it is not reducible to questions of law which can be resolved on a summary judgment motion. A court's first inquiry on a motion for summary judgment is whether "a genuine issue as to any material fact" exists. Fed. R. Civ. P. 56(c). The court is not empowered to try issues of fact on a Rule 56 motion but is restrained to determine only whether triable issues exist.
Associated Electric Coop. Inc. v. Morton, 165 U.S. App. D.C. 344, 507 F.2d 1167, 1178 n.20 (D.D.C. 1974), cert. denied, 423 U.S. 830, 96 S. Ct. 49, 46 L. Ed. 2d 47; 10A C. Wright, A. Miller & M. Kane, Federal Practice and Procedure § 2712, pp. 574-75 (1983).
Plaintiffs' opposition rests primarily on two assertions: first, that the six affidavits describing incidences of a subjective and discriminatory promotion process are sufficient to propel this case forward to trial, and second, their contention that defendant's statistics, which assert that blacks were promoted more often than whites during the charge-filing period, do not focus on the relevant time period.
The court notes, however, that statistical evidence demonstrating a continuing system of discrimination and disparities between similarly situated blacks and whites, which plaintiffs promised would be forthcoming once they had access to the Tax Division's records (see plaintiffs' Opposition to Defendant's Motion to Dismiss pp. 24, 35), has not yet been produced.
Nonetheless, the sworn affidavits raise genuine issues of disputed fact as to whether members of Mr. Mayfield's class were discouraged from applying for promotions. Given that plaintiffs must be afforded the benefit of all favorable inferences, United States v. General Motors Corp., 171 U.S. App. D.C. 27, 518 F.2d 420, 441 (D.C. Cir. 1975), we conclude that plaintiff has "survived the rigors of demonstrating the potential for a prima facie case at trial." Abraham v. Graphic Arts Int'l Union, 212 U.S. App. D.C. 412, 660 F.2d 811, 817 (D.C. Cir. 1981).
A denial of summary judgment is not a decision on the merits and plaintiffs may be unable to carry the ultimate burden of persuading the court that they have been victims of a pattern or practice of employment discrimination. See Texas Dep't of Community Affairs v. Burdine, 450 U.S. 248, 256, 67 L. Ed. 2d 207, 101 S. Ct. 1089 (1981). We hold here only that issues of material fact exist which preclude a present finding for defendant.
In our September 1, 1987 order, we conditionally certified a subclass of individuals alleging systematic discrimination in the Tax Division's reclassification decisions (subclass B). Mr. Mayfield's affidavits clearly demonstrate that he attempted to obtain promotions by this route. The court gave Mr. Mayfield the opportunity to show that the Tax Division's reclassification decisions were made in a manner evidencing systemic race discrimination. The court permitted Mayfield to represent both reclassification applicants and non-applicants on this discrimination charge because Mayfield actually sought advancement through this method. This class was limited, however, to those individuals who as of June 5, 1984 were at the top of their career ladders, or those who, since June 5, 1984, had reached the top of their career ladders. The court contemplated that this conditional certification might succumb to factually specific data produced by the Tax Division.
To satisfy the requirements of Rule 23(a), Federal Rules of Civil Procedure, Mr. Mayfield may sue as a representative party on behalf of all class members if 1) the class is so numerous that joinder of all members is impracticable, 2) there are questions of law or fact common to the class, 3) the claims or defenses of the representative party are typical of the claims or defenses of the class, and 4) the representative party will fairly and adequately protect the interests of the class. "The burden of establishing and maintaining the requirements of Rule 23 rests, of course, with the party seeking certification." Int'l Woodworkers v. Chesapeake Bay Plywood, 659 F.2d 1259, 1267 (4th Cir. 1981). All four of the requirements of Rule 23 (a) must be met for the certification to be appropriate. Not the least of these is that the representative party fairly and adequately represent the interests of the class. This requirement is particularly important because of the potential due process effects of a final judgment on absent class members if they were inadequately represented by ...