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November 27, 1991

YVONNE G. TROUT, et al., Plaintiffs,
H. LAWRENCE GARRETT, III, et al., Defendants.

The opinion of the court was delivered by: GREENE



 This case began in 1973, *fn1" over eighteen years ago, when several complaints charging sex discrimination by the Department of the Navy in violation of Title VII of the Civil Rights Act of 1964 were filed in this Court. *fn2" The Court consolidated the complaints, and it certified a class of plaintiffs consisting of civilian women employees who between June 6, 1972 and June 4, 1979 worked for an agency of the Department of the Navy originally called NAVCOSSACT *fn3" and later NARDAC *fn4" (sometimes collectively referred to herein as NARDAC), the Navy's computer operations center. At a two-week trial, forty-two witnesses were heard, and over 7,500 pages of exhibits were admitted. The Court ultimately decided that plaintiffs had proved discrimination by the Navy against the class in violation of Title VII. Trout v. Hidalgo, 517 F. Supp. 873 (D.D.C. 1981).

 The Court of Appeals affirmed the decision on liability but reversed part of the conclusions drawn by this Court from the parties' statistical evidence. Specifically, the Court of Appeals held that (1) Title VII liability could not be based upon the continuing effects of discrimination occurring prior to March 24, 1972, and (2) the Navy and its officials were not responsible for discrimination in hiring when the hiring grades and salaries were predetermined by another agency. The Court of Appeals accordingly reversed the trial finding of discrimination in initial grade placements. Trout v. Lehman, 226 App. D.C. 357, 702 F.2d 1094, 1103-05 (D.C. Cir. 1983). However, the appellate court also concluded that the evidence created a justifiable inference of discrimination in promotions that had not been rebutted by the Navy, *fn5" and it accordingly upheld this Court's finding of class-wide discrimination in promotions.

 The Supreme Court granted certiorari, and it remanded the case for findings of fact on the limited issue of the evidentiary effect of the parties' statistics, in view of the different approaches taken by this Court and the Court of Appeals. Lehman v. Trout, 465 U.S. 1056, 79 L. Ed. 2d 732, 104 S. Ct. 1404 (1984). On remand, this Court, following appropriate proceedings in conformity with the appellate decisions, again determined that the Navy was guilty of sex discrimination and liable to the plaintiff class. Trout v. Lehman, 652 F. Supp. 144 (D.D.C. 1986). The Court further ruled, in accordance with the Navy's request, that individual hearings would be held for the class members in order to determine their entitlement to relief. Trout v. Webb, 708 F. Supp. 358 (D.D.C. 1988).

 Due to the anticipated number and complexity of the hearings, the individual claims were referred to a Special Master *fn6" pursuant to Rule 53(b) of the Federal Rules of Civil Procedure. The Special Master was also instructed to determine which statistical methodology was most appropriate for use in determining backpay for the individuals. *fn7"

 Proofs of Claim were filed on behalf of 93 claimants. Notwithstanding the decisions of this Court finding discrimination against the class, the government opposed all but 5 of these claims *fn8" on the basis that the individuals had not been discriminated against. The effect of the Navy's action was to require the 88 remaining individuals to prove discrimination all over again, although, as a matter of law, once a finding of discrimination has been made in favor of the class, individual class members need to make only a minimal showing to be entitled to relief, Pettway v. American Cast Iron Pipe Co., 494 F.2d 211, 259 (5th Cir. 1974); Baxter v. Savannah Sugar Refining Corp., 495 F.2d 437, 445 (5th Cir. 1974), and a finding in the class' favor is therefore normally accepted by defendants in Title VII litigation with respect to all or all but a few of the class members.

 Following briefing and argument, the Special Master ruled on January 11, 1990 that 32 members of the class were entitled to summary judgment on the issue of entitlement to relief pursuant to International Brotherhood of Teamsters v. United States, 431 U.S. 324, 361-62, 52 L. Ed. 2d 396, 97 S. Ct. 1843 (1977), which included summary judgment that was granted to the 5 class members whose claims were not contested by the Navy; summary judgment was granted in favor of the Navy in 16 cases where the claimants could not satisfy the initial burden imposed by Teamsters or where the Navy successfully rebutted the plaintiffs' claim; and 10 cases were dismissed where the claimants were found to have opted out of the class. Due to factual ambiguities, the issue of entitlement to relief of the remaining 35 class members was set by the Special Master for individual evidentiary hearings. *fn9"

 The Special Master thereafter held extensive evidentiary hearings to determine the most appropriate form of regression analysis model to be used in computing backpay relief for those who were entitled to such relief. On March 30, 1990, he issued initial conclusions regarding the form of the regression analyses and he identified areas that required additional examination. On December 27, 1990, the Special Master issued his Second Memorandum and Order on the Most Appropriate Form of Regression Analysis to be Used in Determining Backpay Relief for Class Members (Regression Memorandum II).

 Both parties have filed motions requesting that the Court reverse or modify rulings of the Special Master in accordance with their respective objections. All these objections are decided herein pursuant to Fed. R. Civ. P. 53(e). *fn10" The standard of review for the rulings of the Special Master is de novo as to legal questions, and clearly erroneous as to factual issues. See Oil, Chemical and Atomic Workers International Union, AFL-CIO v. NLRB, 547 F.2d 575, 580 (D.C. Cir. 1976); see also, Celotex Corp. v. Catrett, 477 U.S. 317, 91 L. Ed. 2d 265, 106 S. Ct. 2548 (1986).


 Specific Navy Objections to Special Master Conclusions

 A. Discrimination in Grade at Hire

 The Navy objects to the Special Master's consideration of cases in which the discrimination allegedly occurred in the particular plaintiff's grade placement at time of hiring. The argument is that at-hire discrimination was not within the Special Master's jurisdiction or that of this Court because the Court of Appeals, when it reviewed this Court's 1981 finding of class-wide discrimination, limited the liability of the Navy to discrimination in promotions, removing at-hire grade placement as a basis for any of plaintiffs' claims.

 This line of argument misconstrues the Court of Appeals decision. As indicated above, the Court of Appeals did rule that discrimination at hire was not, in and of itself, a basis for liability. But as also noted above, the appellate court also concluded, explicitly affirming this Court's prior ruling, that a showing of discrimination at hire is relevant to the issue of whether plaintiffs were equitably promoted by the Navy and may be considered on that issue. See Trout v. Lehman, supra, 702 F.2d at 1105 (quoting Trout v. Lehman, 517 F. Supp. at 881, 885).

 The Navy's attempt to bypass that appellate ruling ignores the complex fabric of discrimination in which issues such as these are often woven together. It is certainly true that the Navy is not liable for at-hire grade placements made by agencies outside the Department of the Navy. The Special Master did not conclude otherwise. It is also true that the issue of liability must be focused on discrimination in promotions. But where a plaintiff is able to show (1) that her initial placement was in the control of the Navy, *fn11" or (2) that she was placed at a grade level beneath her qualifications, whether by the Navy or by any other executive agency, and the Navy did not thereafter promote her in an equitable manner, discrimination in violation of Title VII may be found. The evidence disclosed and the Special Master found numerous examples in both categories.

 To cite just one such occurrence in each group, the evidence showed with respect to initial placement that Brenda J. Weaver was hired by NAVCOSSACT at a GS-9 even though her education and experience qualified her to be a GS-11, because the Director of Personnel of that Navy unit informed her, according to Ms. Weaver's proof of claim, that "a married woman did not need as much money as a GS-11 mathematician was being paid." Special Master Memorandum (January 11, 1990) at 66.

 As for discrimination in promotions, the record shows that Patricia H. Fox was rated on the Civil Service Register as a GS-7 computer programmer. Ms. Fox had a bachelor's degree in mathematics from Middleberry College, post-graduate training with IBM, and work experience in computer programming and systems design that consisted of four summers in college and two and one-half years full-time. Although Ms. Fox asserted that the Civil Service improperly rated her as a GS-7 rather than a GS-9 at the time of her hiring, her claim in this litigation was predicated upon the failure of NARDAC subsequently to promote her to GS-9 when her qualifications and work performance warranted such a promotion. Special Master Memorandum (January 11, 1990) at 57.

 That these were not isolated examples but typical of the practices at NARDAC is evidenced by the Special Master's detailed findings which are consistent with the general statistical distributions stipulated to by the parties, as shown in the footnote below, which show systematic underrepresentation of women in promotions and a loss of pay by women compared to men of almost $ 2000 per individual. *fn12" In addition to the statistical evidence, there also was evidence from various witnesses who testified as to specific acts of discrimination against them and other NARDAC employees.

 The Special Master exhaustively considered the evidence with respect to each of the plaintiffs in these categories, and the Court finds that the Special Master's conclusions with respect thereto were not erroneous but clearly correct. The Navy's objection is accordingly rejected.

 B. Discrimination By Independent Naval Commands

 Two points are made by the Navy with respect to discrimination by Navy commands other than NARDAC or NAVCOSSACT.

 First. The Navy argues that the Special Master erred in ruling that plaintiffs who were discriminated against by a different Naval command prior to being employed by NARDAC or NAVCOSSACT may be entitled to relief in this action. *fn13" In support of that argument it is said that, because the relevant class is defined as certain employees of NARDAC or NAVCOSSACT, discriminatory practices by other Naval commands are outside the parameters of this case. That contention is not well taken.

 42 U.S.C. ยง 2000e-16(c) directs that in Title VII actions against government employers, the "head of the department, agency, or unit, as appropriate, shall be the defendant." In the instant case, the action was brought against the Secretary of the Navy and the commanding officer of NARDAC, and through the years new Navy Secretaries and NARDAC heads were substituted as different individuals were appointed to these positions. It would make no sense to hold that in a suit against a defendant, i.e., the Secretary of the Navy, discriminatory acts by some of his subordinates or agents may be considered but that those of other subordinates must be disregarded.

 In line with these principles, this Court has treated the action throughout its long course through the courts as one against the Department of the Navy. Similarly, when the Court of Appeals reviewed this case, it held that defendant could not be held liable "for the employment practices of other agencies over which it had no control." Trout v. Lehman, supra, 702 F.2d at 1105. The "other agencies" specifically named were the Civil Service Commission and the Office of Personnel Management, and there was no suggestion that this exception applied also to other subordinate Navy commands. *fn14" In short, it is clear that discrimination by sub-agencies of the Department of the Navy may appropriately be a basis for liability.

 Second. In a related argument, the Navy asserts that because the class encompasses only employees of NARDAC or NAVCOSSACT, plaintiffs' allegations and proof must be limited to these two units or the class is enlarged and the commonality requirement is destroyed. Both the premise and the argument itself are mistaken.

 Plaintiffs Miner and Russell, both members of the class, alleged discrimination at the hiring stage by another unit within the Department of the Navy, the Naval Materiel Command Support Activity (NMCSA). The discrimination was perpetrated at NARDAC when they were not promoted to a level consonant with their experience. It was on that basis that these individual plaintiffs, in common with the other members of the class, alleged discrimination, and it is on that basis that their allegations did not enlarge the class or destroy commonality. The Special Master's consideration of claims by Ms. Miner and Ms. Russell was therefore proper.

 C. Career Ladder Promotions

 The Special Master granted summary judgment in favor of four plaintiffs *fn15" who were in line for but did not receive "career ladder" promotions. With respect to these cases, the Navy argues that, because these promotions were discretionary rather than automatic, the failure to promote could not be discriminatory. This argument is entirely without merit.

 First. In a Title VII suit it is not decisive whether particular promotions were discretionary or automatic; what is critical is whether the promotions were awarded in a discriminatory matter. The law books are filled with decisions of discrimination in employment where the particular act of the employer was discretionary. Watson v. Ft. Worth Bank & Trust, 487 U.S. 977, 101 L. Ed. 2d 827, 108 S. Ct. 2777 (1988); Ibrahim v. New York State Dept. of Health, 904 F.2d 161 (2d Cir. 1990); Tye v. Bd. of Education, 811 F.2d 315 (6th Cir. 1987); Maddox v. Claytor, 764 F.2d 1539 (11th Cir. 1985); Carpenter v. Stephen F. Austin State Univ., 706 F.2d 608 (5th Cir. 1983). In fact, discrimination with respect to employment actions which are otherwise discretionary is far more typical of Title VII violations than those over which the employer has no real control. To accept the Navy's argument would be likely to eliminate the vast bulk of discriminatory decisionmaking from the ambit of Title VII.

 Second. The four claimants met their burden with respect to discrimination. The issue of discrimination is factual. Once a plaintiff has made out a proof of a claim that satisfies her initial burden, the defendant must provide clear and convincing evidence to rebut that showing. See International Brotherhood of Teamsters v. United States, supra, 431 U.S. at 359; Stewart v. General Motors Corp., 542 F.2d 445, 453 (7th Cir. 1976). The Navy did not rebut the claimants' showings here; in fact, it has not asserted that there was anything in these claimants' personnel records that would justify the denial of their career ladder promotions.

 Ms. Fields was at the GS-7 level for twenty-three months, while the average wait in grade for men at that level was 13.7 months. The Navy offered no evidence of legitimate reasons for the disparity or indeed any explanation other than the "discretionary" legal argument noted above.

 In the case of Ms. Kratz, it took twenty-one months for her to become a GS-11, while during that entire period all of the men who were doing the same work were at GS-12. Here again, the Navy has not explained the delay, or why Ms. Kratz was in a lower grade at all. The Special Master, the trier of the facts, could appropriately find that the Navy had discriminated against this plaintiff.

 Ms. Quade (Miller) claims that, when she was hired at a GS-5 level although qualified to be a GS-7, she was promised a promotion within one year, but that this promotion was not forthcoming. The only answer provided by the Navy -- one that, as indicated above, is insufficient -- is that Ms. Quade had no right to a promotion. That answer would make sense only if one assumed that the right embodied in Title VII not to be discriminated against is no right at all. *fn16" That of course is erroneous.

 The findings of the Special Master that these claimants met their initial burden and that the Navy failed to rebut their proofs with clear and convincing evidence are not clearly erroneous, and the Navy objections will accordingly be rejected.

 D. Whitten Amendment and Pre-Act Conduct

 The Navy next objects to the Special Master's consideration of the Whitten Amendment *fn17" as a defense to the claim of Danise Owens and of pre-Act conduct with respect to the claims of Helene Reveley and Sharon Woods.

 In response to Ms. Owens' claim that her promotion was discriminatorily delayed, the Navy counters that the delay was justified by the Whitten Amendment which specifies that a promotion must be preceded by one year of service at the next lower grade level. The Special Master found factual ambiguities surrounding the length of Ms. Owens' service and the timing of her eligibility for promotion, and he ordered an individual hearing on the matter. Similarly, the Special Master ordered individual hearings for the claims of Ms. Reveley and Ms. Woods, again due to factual ambiguities.

 Regardless of whether the Navy's position is legally viable, the Special Master first had to establish whether the factual premises of the Navy's arguments were correct, for on their face the claims submitted by these three plaintiffs indicated discriminatory treatment. It was because the facts were disputed and unclear that the Special Master ordered individual hearings at which the Navy could have established the factual predicates for its Whitten Amendment and pre-Act-conduct arguments. The Navy chose, however, not to contest any of the claims scheduled for individual hearings, including those of Owens, Reveley, and Woods. The Navy cannot now resurrect its arguments, having previously decided to forego the opportunity to make out a factual case regarding the claims. The Navy's objections are, accordingly, denied.

 The Navy objects next to the Special Master's finding in favor of plaintiff Rosie B. Hopkins. The Special Master concluded that, under the then-existing upward mobility program, it was not necessary for Ms. Hopkins to have applied for a promotion, while the Navy asserts that her failure to apply is fatal to her claim. The Navy is mistaken.

 First, this Court has already ruled that plaintiffs need not have actually applied for promotions in order to be entitled to relief, Trout v. Hidalgo, 31 FEP Cas. 281, 283 n.4 (D.D.C. 1981), citing Teamsters, and that ruling, never overturned on appeal, is the law of the case. As with respect to a number of other issues discussed herein, see Section VI-A, infra, Department of Justice counsel have sought to ignore the rulings previously made in this case, erroneously appearing to regard the hearings on the entitlement of the individual class members as an opportunity to relitigate the broad legal issues that were put to rest for purposes of this case when they were decided in the context of the litigation regarding the class.

 Second, and in any event, the Special Master found that there was a fixed schedule of promotions in the upward mobility program, and that under that program Ms. Hopkins did not need to apply for promotions to receive them. In response, the Navy simply asserts that Ms. Hopkins was not in the program and that she was required to apply for a promotion. That flat assertion is not enough to overcome either the doctrine of the law of the case nor does it establish that the Special Master's factual determination was clearly erroneous. The Special Master's finding is not erroneous but correct.

 F. Defense of Lack of Vacancy for Promotion

 The Navy contends next that the Special Master erred in calculating backpay relief for each successful plaintiff as if she had received the promotions she did not receive because of the discrimination, *fn18" arguing that not every claimant would have actually been so promoted. According to the Navy, because the number of claimants is greater than the number of promotions, the Special Master should have established a retroactive quota on promotions, that is, all the claimants should have divided, pro rata, the monetary value of a fixed number of promotions. One of the difficulties with that argument is that the Navy has not proffered the actual number of available promotions, and it is not possible to determine that number. The Navy's solution -- that the Court should simply assume a number and proceed from there -- is too clever by half.

 First. The Court has previously rejected quotas in the context of this case. In their initial request for relief, the plaintiffs asked the Court to impose a quota system on NARDAC for all future promotions, but the Court rejected that request. Trout v. Hidalgo, supra, 31 FEP Cas. at 285. Having rejected a future quota system, it would be incongruous now to impose a retroactive quota system.

 Second. The issue before the Court is not which members of the class were or were not entitled to particular promotions, but what amount of backpay is to be awarded to the individual class members. The Navy seeks once again to ignore the determination long ago made in this case that, liability having been established, relief was to be awarded under a "representative earnings" formula, Trout v. Hidalgo, supra, 32 FEP Cas. at 283, which bases recovery upon the earnings of a group of employees not injured by the discrimination, comparable to plaintiffs in ability, size, ...

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