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MAYFIELD v. THORNBURGH

July 27, 1990

WILLIE N. MAYFIELD, et al., Plaintiffs,
v.
RICHARD THORNBURGH, Defendant



The opinion of the court was delivered by: PRATT

 JOHN H. PRATT, UNITED STATES DISTRICT JUDGE

 I. Introduction

 The issues raised by this class action have been amply set out in our previous rulings, *fn1" and for the most part we do not repeat them here. Briefly, plaintiffs are black non-attorneys employed at the Department of Justice's Tax Division who never applied for competitive promotions. They allege that the Tax Division's competitive promotion system violates Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e-16 (1982), under both disparate treatment and disparate impact theories of liability. Presently before the Court is defendant's renewed motion for summary judgment or, alternatively, for decertification of the class. For the reasons that follow, we deny defendant's motion in its entirety.

 II. The Motion for Summary Judgment

 A. The Applicable Legal Standards

 Under Rule 56(c), Fed. R. Civ. P., a court must enter summary judgment against a party who "after adequate time for discovery . . . fails to make a showing sufficient to establish the existence of an element essential to that party's case, and on which that party will bear the burden of proof at trial." Celotex Corp. v. Catrett, 477 U.S. 317, 322, 106 S. Ct. 2548, 91 L. Ed. 2d 265 (1986). At this stage in the proceedings, it is not our function "to weigh the evidence and determine the truth of the matter," but merely to decide whether there are any genuine issues that require a trial. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249, 106 S. Ct. 2505, 91 L. Ed. 2d 202 (1986). In other words, our inquiry is limited to whether there are any material "issues that properly can be resolved only by a finder of fact because they may reasonably be resolved in favor of either party." Id. at 250.

 Our November 1988 denial of defendant's motion for summary judgment was based on two grounds. First, we found that genuine issues of fact existed as to whether plaintiffs would have applied for competitive promotions but for their belief that defendant's discriminatory practices rendered it futile to do so. See Mayfield v. Meese, 704 F. Supp. 254, 257 (D.D.C. 1988). *fn2" Second, we recognized that plaintiffs might have had an insufficient opportunity to analyze data concerning defendant's promotion practices that was essential to their opposition. See id. at 256-57 & nn. 7-8; see also Liberty Lobby, 477 U.S. at 250 n. 5; Fed. R. Civ. P. 56(f). Since that time, plaintiffs have analyzed this data and submitted a comparison of the promotion rates of black and white non-attorneys at the Tax Division. Resolution of the renewed motion for summary judgment turns largely on the sufficiency of these statistics.

 Plaintiffs must show that a genuine issue of fact exists as to each element of a prima facie case of disparate treatment and disparate impact discrimination. See Catrett, 477 U.S. at 322. To make out a prima facie case of disparate treatment, plaintiffs must offer "evidence adequate to create an inference that" defendant's promotion decisions were racially motivated. International Brotherhood of Teamsters v. United States, 431 U.S. 324, 358, 97 S. Ct. 1843, 52 L. Ed. 2d 396 (1977). This burden may be satisfied by showing "a disparity in the relative position" of blacks and eliminating "'the most common nondiscriminatory reasons' for" that disparity. Segar v. Smith, 238 U.S. App. D.C. 103, 738 F.2d 1249, 1273 (D.C. Cir. 1984) (quoting Texas Department of Community Affairs v. Burdine, 450 U.S. 248, 254, 101 S. Ct. 1089, 67 L. Ed. 2d 207 (1981)) (second citation omitted), cert. denied, 471 U.S. 1115, 105 S. Ct. 2357, 86 L. Ed. 2d 258 (1985). To make out a prima facie case of disparate impact, plaintiffs must establish that specific employment practices have resulted in observed statistical disparities between the racial composition of the desired jobs and the racial composition of the pool of those qualified for the promotions. See Wards Cove Packing Co. v. Atonio, 490 U.S. 642, 109 S. Ct. 2115, 2121-23, 104 L. Ed. 2d 733 (1989).

 B. Plaintiffs' Statistical Analysis

 Plaintiffs have submitted a statistical analysis of all promotion activities that occurred through October 23, 1984, the date on which plaintiff Mayfield filed his EEOC complaint. See Ex. A to Pls. Opp. According to their analysis, which compares the average number of days spent within grades by whites and blacks, whites are promoted at a faster rate than blacks. The analysis also indicates that blacks are concentrated in the lower GS grades, with not a single black employed at a grade above GS-12. Whites, on the other hand, are distributed more evenly among the grades and are employed at all grades from GS-2 through GS-15. The analysis further indicates that significant disparities exist in the promotion rates of blacks and whites at almost all applicable grades. *fn3"

  Defendant argues that these statistics do not support a prima facie case of either disparate treatment or disparate impact discrimination because they fail to focus exclusively on competitive promotions. *fn4" This criticism is not insubstantial; indeed, it ultimately may defeat plaintiffs' case at trial. *fn5" In order to avoid summary judgment, however, plaintiffs simply must raise a genuine issue of fact as to the existence of a disparity in competitive promotion rates. See Catrett, 477 U.S. at 322; Liberty Lobby, 477 U.S. at 249-50. This they have done.

 Without a doubt, plaintiffs have demonstrated a disparity between the promotion rates of blacks and whites. Although the disparity might conceivably relate solely to within grade "career ladder" promotions, we must afford plaintiffs the benefit of all favorable inferences. See United States v. General Motors Corp., 171 U.S. App. D.C. 27, 518 F.2d 420, 441 (D.C. Cir. 1975). Moreover, "the problem of comparability is much less acute here than in Wards Cove." Allen v. Seidman, 881 F.2d 375, 379 (7th Cir. 1989); see also Emanuel v. Marsh, 897 F.2d 1435, 1440 (8th Cir. 1990) ("Unlike the hiring practice in Wards Cove, promotions were, in practice, made from . . . the pool of lower level employees . . . ."). In contrast to the skilled and unskilled workers in Wards Cove, the black and white employees compared in plaintiffs' analysis are not "obviously and substantially different in some relevant respect." Allen v. Seidman, 881 F.2d at 379; see also Emanuel v. Marsh, 897 F.2d at 1440 (nothing in the "record demonstrates that the qualifications for the various GS-levels" at issue "are vastly different or at all exclusive of each other"). To the contrary, the fact that they all eventually received promotions indicates that defendant ultimately found all of them "qualified."

 For these reasons, we hold that plaintiffs' statistics sufficiently compare "apples to apples" to survive a motion for summary judgment. This is enough for plaintiffs' disparate treatment theory to survive. We turn now to the final ...


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