and continued after that date. Use of the benchmark date would bury the original discrimination, leaving exposed only a seemingly equitable pattern of employment practices. Just as this Court looked beyond March 24, 1972 to infer subsequent discrimination, it must also look beyond that date to remedy subsequent discrimination. The Navy may or may not be responsible for employment practices before the benchmark date; but it is responsible for perpetuating their effects after that date. Bazemore v. Friday, supra, 478 U.S. at 397. The Navy's proposed use of the benchmark date was properly rejected by the Special Master.
D. Credibility Assessment of the Government's Expert
The Special Master found that plaintiffs' expert Dr. Straszheim was more credible than the Navy's expert Dr. Gilmartin, Special Master's Regression Memorandum II at 46, and the Navy challenges that determination. Just as did the Special Master, the Court concludes that the Gilmartin testimony was incredible on its face.
Dr. Gilmartin's analysis was based on the explicit premise that NARDAC had been entirely free of discrimination. Special Master's Regression Memorandum II at 46. According to that expert witness, there should be no relief at all because "to my knowledge, there is no evidence that NARDAC discriminated against a protected group during the relevant time period." Tr. of August 1990 hearing at 282. Gilmartin made this astounding statement although, as acknowledged, he was "not involved at trial," Tr. at 383, and although this Court expressly made a finding to the contrary.
Just as has been indicated above, throughout the proceedings before the Special Master, and its arguments here, the Navy and their Justice counsel flagrantly ignored the doctrine of the law of the case. These violations of legal rules that apply to all litigation were compounded when counsel presented a witness who proceeded likewise to flout that rule. It would not be going too far to characterize such conduct as contemptuous of the judicial process. See also, Section VI, infra. In any event, the Special Master quite properly observed that Dr. Gilmartin's judgment could not help "but be affected by his conclusion that there was no discrimination in this case." Id. at 47.
Finally, given the superior vantage point of the Special Master as the trier of facts and the strength of the evidence supporting his finding, the Navy's objection to the credibility determination must be dismissed as frivolous. See Fed. R. Civ. P. 53(e); Bostick v. Boorstin, 199 App. D.C. 289, 617 F.2d 871 (D.C. Cir. 1980); see also, Anderson v. Bessemer City, 470 U.S. 564, 575, 84 L. Ed. 2d 518, 105 S. Ct. 1504 (1985) (even greater deference than usual where the fact finder's ruling is based on the credibility of witnesses).
E. The Relationship of Six Individual Claims to the Accuracy of the Regression Analysis
While a wide disparity exists in general between the calculations of the Navy and those of the plaintiffs, it is particularly marked in six individual cases.
In these six cases, the Navy's analysis achieved the result that each claimant was owed on the average only about fifty dollars in relief for the entire period of discrimination, while the analysis of plaintiffs' expert amounted to an average per claimant of around fifteen hundred dollars in backpay.
The extreme variations in the experts' calculations prompted the Special Master to request that the parties answer detailed questions regarding several illustrative claims. Special Master's Regression Memorandum II at 49. The Navy claims that it was error for the Special Master to examine the six claims and to refer to them in his Memorandum.
Here again, the Navy and its Justice counsel, in a manifestation of the extraordinary zeal they have displayed throughout this case, complain about a matter of methodology which is plainly within the fact-finder's discretion. The Special Master's examination served to assess what variables might have been responsible for the marked disparities between the conclusions of the various experts, and whether particular variables were properly included or excluded in the regression analysis. When one party argues that a particular claimant is owed $ 2,080.90 in backpay and the other calculates an award of $ 9.00,
a more detailed examination of the parties' process is not only warranted but may well be required.
The Navy's objections to a detailed examination of the facts underlying some of the claims are rejected.
F. Use of the NRFC Formula
As discussed in detail infra, the Navy did not in March 1989 contest the claims of five of the plaintiffs.
The ramifications of that concession are discussed in Section VI-C of this Opinion. Here, the Court will examine only the dispute regarding the correct computation of the five awards.
The Navy argues that if it must pay these claimants, the relief should be calculated according to the regression formula ultimately adopted by the Special Master, and not that of the Navy Regional Finance Center (NRFC). The Special Master's decision to utilize the NRFC computation came about as follows. When the Navy conceded these five cases, it stated that a regression calculation would not be necessary because relief could simply be calculated by the NRFC. Defendants' Responses to the Class Members Proof of Claim Forms at 1 (March 22, 1989). The Special Master acquiesced because he was apparently concerned that in these uncontested cases use of the regression analysis -- the shape of which had not yet been decided -- would further delay relief in what were, by then, prolonged proceedings. As it turned out, and as anyone studying the record in this case could have predicted, the government's
continuing dilatory tactics delayed adoption of a regression formulas and hence further relief.
Subsequently, when the regression analysis itself finally became available to him, the Special Master reversed himself in three of the five cases where the amount calculated by the regression analysis was greater than the NRFC calculation, and Marie Lassiter Broughton, Faye Tolliver, and Carole Velvin were ordered to be awarded amounts calculated according to the regression analysis adopted by the Special Master. As for the two remaining claimants, Carolyn Harwood and Claire Chong, the Special Master decided that he did not wish to deny them the NRFC award which was larger in their cases than the regression award would have been.
Presumably because it now advocates the use of the regression analysis in the first place, the Navy does not challenge the use of the regression figures in the cases of Broughton, Tolliver and Velvin. As for Harwood and Chong, it challenges the use of the NRFC figures only with respect to Chong.
The Court affirms the Special Master's rulings with respect to Broughton, Tolliver, and Velvin, in that their recovery was properly calculated in accordance with the regression analysis applied to the other claimants. However, as to Carolyn M. Harwood and Claire C. Chong, notwithstanding general principles,
the Court will reverse the Special Master's determination. These plaintiffs cannot, consistently with the law, be awarded relief in accordance with the NRFC calculations merely because the monies involved are larger than they would be if they were calculated under the regression analysis. The regression analysis was the proper tool for the relief computations as to the class generally and therefore as to Ms. Harwood and Ms. Chong in particular. The relief will accordingly be computed based on the regression analysis.
Plaintiff's Objection to the Denial of Pre-Judgment Interest
Plaintiffs' request for an award of pre-judgment interest was denied by the Special Master, based upon the ruling of the Court of Appeals in Brown v. Secretary of Army, 287 App. D.C. 8, 918 F.2d 214 (D.C. Cir. 1990). In that case, the court ruled that while successful Title VII litigants are generally entitled to pre-judgment interest through the effect of the Back Pay Act, 5 U.S.C. § 5596, that Act does not extend to the discriminatory denial of promotions.
Since in the instant case, plaintiffs' request was for pre-judgment interest for the discriminatory denial of promotions, the Special Master denied the request pursuant to the holding of Brown. Special Master's Regression Memorandum II at 45. That was clearly correct, and plaintiffs' objection is overruled.
Conduct of the Navy and Its Justice Counsel
"The Government Wins Its Point When Justice is Done in its Courts"
Former Solicitor General Frederick William Lehmann so stated,
and his words have since echoed through time as an expression of the highest traditions of the Department of Justice. It is undoubtedly because the Lehmann saying so aptly captures the spirit of the Constitution and the importance of fair play when government is dealing with citizens, that this saying is now carved above the entrance to the Office of the Attorney General of the United States.
Upon contemplating the recitation of events described below, however, it is difficult to escape the conclusion that those who have been conducting the litigation in this case on behalf of the government have been operating on the converse of the Lehmann premise: their view appears to be that justice is done in the courts when the government wins its point. The Court now turns to that topic.
A. Delays and Relitigation
As the Court has repeatedly observed, the government has sought to prolong this litigation by every means possible, both fair and foul. It is the Court's hope that the decisions made herein will finally conclude a case that in duration may make Charles Dickens' Jarndyce v. Jarndyce61 look like a summary judgment proceeding.
Nearly twenty years have gone by since this action was initiated. While a vigorous and detailed defense of policy positions in the courts is of course entirely legitimate, the Navy's actions, supported by Justice counsel, have here gone beyond normal bounds. As an example: although the Court ruled a number of years ago that this class of women working for the Navy had been discriminated against on account of sex, the Navy has insisted on relitigating every single individual claim as if there had never been such a finding in favor of the class.
While a finding of discrimination in favor of the class is not ipso facto binding with respect to every class member, it is an affront to that finding to relitigate the discrimination issue with regard to every one of the members of the class.
These events have of course subjected the women who were discriminated against to recurring and unnecessary strain.
Such litigation tactics are inappropriate in any context, but the studied refusal to follow many unreversed rulings of the Court and the insistence on regarding them as non-existent may fairly be characterized as contemptuous of the judicial process. The Court of Appeals itself observed with respect to this case over eight years ago:
At some point litigation must come to an end, even though it is always possible to offer more evidence. . . We find it extremely troublesome -- in light of the long and complex history of this litigation and in light of Judge Greene's patient and thoughtful treatment of the case -- that the appellants would even propose that the trial court reopen and retry the matter. In the context of this case setting, such an adversarial tactic is irresponsible . . . and wasteful of precious resources of litigants and the judiciary.
Trout v. Lehman, supra, 702 F.2d at 1106.
Similarly, Justice Stevens, dissenting from the Supreme Court's remand of this case, expressed the fear seven years ago that "the Court's action today encourages the kind of litigation strategy that gives the party with the greater resources a significant advantage unrelated to the merits of the case," noting further that the government's conduct in this case "has hardly been a model for future cases." Lehman v. Trout, supra, 465 U.S. at 1061. These comments were not only accurate when made; they were prophetic.
One is tempted to wonder what the judges of the Court of Appeals and the justices of the Supreme Court would think of the government's activities in the many years since these jurists deplored the then-existing delay. One must fear, however, that the Navy and the attorneys of the Department of Justice will see to it that we will find out.
Long after the most recalcitrant private employers have accepted the principle that discrimination against women is not only morally wrong but also illegal, the Navy, with assistance from Department of Justice counsel,
has fought these women at every turn, challenging almost every contention and litigating and relitigating almost every issue, with arguments that were often not only lacking merit in substance but were also foreclosed by the law of the case. This Court has complained again and again about the government's litigation tactics in this case, both orally and in written opinions, but the only effect appears to have been to cause counsel to redouble their efforts to relitigate matters long settled as well as to raise new issues, see Subsection C, infra, all with a view to delaying resolution of this case and to exhausting the women plaintiffs financially.
Why, one must wonder, has the Navy, with the assistance of Justice counsel, fought this case with such disregard for the proper operation of the judicial process and animosity toward these Navy women? It could not be that the Navy wishes to avoid the stigma of a finding of discrimination (as is sometimes true in Title VII cases), for discrimination by the Navy has already been found in this case -- twice, in 1981 and 1986. The problem could not be the money to pay the judgments, for, as discussed in Subsection B, infra, it apparently cost the government far more to fight this action than any judgment that could reasonably have been rendered against it. In view of all the factors, the only reasonable explanation for the performance of the Navy and Justice in this case is that they are seeking to deter others who might consider complaining and litigating about sex discrimination by the Navy. That, of course is inadmissible.
B. Financial Considerations
In the course of the many years of litigation, the government has spent extraordinary amounts of money for attorneys, expert fees, and other expenses while exerting utmost financial pressure on those plaintiffs not represented by large law firms. Thus, the government has spent nearly $ 2 million in expert witness fees on the most recent round of litigation alone. See also, note 49, supra. Yet the difference between plaintiffs' claims for relief and the government's figure is less than $ 625,000. This kind of disparity between expenditure and any likely judgment appears to hold true for the entire eighteen-year odyssey of this case. In these days of an enormous budget deficit, it would seem to be an extravagant waste of taxpayer funds for the Navy to spend millions of dollars in litigation expenses in order to save a fraction of that in damages to the women class members.
Not only have the Navy and Justice counsel long delayed the resolution of this case, they have also sought to make it unreasonably costly for their opponents to resist. The Navy and its counsel adamantly opposed a 1987 request by plaintiffs' counsel for interim attorneys' fees -- hardly an unreasonable request after many years of litigation, the expenditure of a vast amount of funds, and an entirely favorable outcome to plaintiffs with respect to the class litigation. See Brown v. Marsh, 707 F. Supp. 21, 23 (D.D.C. 1989); McKenzie v. Kennickell, 669 F. Supp. 529, 535 (D.D.C. 1987); Jurgens v. EEOC, 660 F. Supp. 1097, 1100-01 (N.D. Tex. 1987). When the government's opposition was rejected by the Court, Trout v. Lehman, supra, 702 F.2d at 3, the Navy and its counsel commenced a further round of litigation on the issue of attorneys' fees,
and only when they had exhausted all avenues of ordinary and extraordinary review were the fees paid in 1989, over two years after they had been sought by plaintiffs.
It is interesting to contrast this treatment of individual counsel for the class members with the alacrity with which the Navy agreed to payment when the large law firm of Covington & Burling and the Lawyers' Committee for Civil Rights were brought in to contest issues relating to thirty-five of the plaintiffs herein. The theretofore determined opposition of the Navy and its counsel suddenly collapsed, and they agreed to the requested substantive relief and to plaintiffs' attorneys' fees. At the same time, the Navy and its counsel kept opposing the claims of the thirty-two plaintiffs who had prevailed on summary judgment (even though the summary judgment cases were far more likely to be meritorious than the others in which there were factual, in addition to legal, issues).
Here again, it is difficult to escape the conclusion that the Navy and its counsel did not believe that they could wear out Covington & Burling and the Lawyers' Committee, and so they settled with those lawyers and the claimants they represented, but that it seemed worthwhile to attempt to exhaust financially the small law firm that had handled this class action, most of the time without receiving any payment. Large corporations may occasionally engage in that sort of tactic when dealing with a nuisance critic, as do also some affluent defendants in criminal cases who hope to wear out prosecution witnesses by delays and postponements, and who believe that, somehow, with the passage of time and the expenditure of funds, they will be able to minimize or eliminate their exposure. But the United States Navy and the Department of Justice?
C. Five Individual Claims
While the previous discussion places the conduct of the Navy and of Justice counsel in its larger context of overzealous litigation, one of counsels' tactical steps must be discussed separately.
As noted above, despite the Court's finding of class-wide discrimination, the Navy and Justice counsel chose to contest nearly every individual claim. However, there were five claims they did not contest.
See Section IV-F, supra. On March 22, 1989, Justice counsel filed a memorandum in this case on behalf of the Navy in which they described these five claims as "undisputed," and announced their intention "not to contest" them. Defendants' Response to the Class Members Proof of Claim Forms at 1 (March 22, 1989). If there was any doubt about the meaning of the March 22 memorandum, it was dispelled by a number of other filings entitled, for example, "Defendants' Determination to Retroactively Promote Ms. Claire Chong," wherein it is stated that "NARDAC has decided to retroactively promote Ms. Chong based upon her Qualifications," see Defendants' Objections Regarding the Retroactive Promotion (October 25, 1990) at 6, and similar memoranda regarding claimants Tolliver, Broughton, Haywood, and Velvin.
Plaintiffs thereafter filed for summary judgment with respect to these five and other claimants, and Navy-Justice counsel again responded that they would not contest these five claims. Defendants' Cross Motion for Summary Judgment (July 17, 1989) at 23. n68 The Special Master consequently granted summary judgment to these five plaintiffs. Government counsel thereafter continued to file objections to nearly every adverse ruling of the Special Master -- except to the grant of summary judgment to the five uncontested claims. Indeed, on April 24, 1990, counsel represented that these claimants would be promoted as of specific dates as follows:
Grade Level to Which
Claimant is to be Proposed Date
Claimant Promoted of Promotion
Marie Broughton 13 August 18, 1976
Claire Chong 13 June 6, 1972
Faye Tolliver 13 November 20, 1977
Carole Velvin 13 October 23, 1977
Carolyn M. Harwood 14 April 8, 1979
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