The opinion of the court was delivered by: ROBERTSON
This class action involves gender-based employment discrimination in the promotion and hiring practices of the United States Information Agency ("USIA" or "agency"), in violation of the Civil Rights Act of 1964, as amended, 42 U.S.C. § 2000e et seq. Judge Charles R. Richey, who presided over the case for just over twenty years until his death on March 19, 1997, bifurcated it into a liability stage and a relief stage.
During the liability stage, Judge Richey determined that, from October 8, 1974 through November 16, 1984, the defendant engaged in a system-wide pattern and practice of gender-based employment discrimination. The case then proceeded to the relief stage. In that stage, each member of the plaintiff class is entitled to a "Teamsters hearing," see International Brotherhood of Teamsters v. United States, 431 U.S. 324, 52 L. Ed. 2d 396, 97 S. Ct. 1843 (1977), to determine her entitlement to relief and the scope of that relief.
A hearing was conducted May 16, 1997 on objections to six of the reports, as to claimants Dilara Hashem, Musarrat Burkie, Lynn Goldman Bartlett, Judith Ambrose, Carolyn Turner, and Wai-Soo Wong Koo. The Court's rulings on those six reports are set forth below.
A Special Master's findings of fact in a non-jury action are to be accepted unless they are clearly erroneous. Fed. R. Civ. P. 53(e)(2). This deferential standard is the same as that governing appellate review of district court findings. Oil, Chemical & Atomic Workers Int'l Union, AFL-CIO v. NLRB, 178 U.S. App. D.C. 278, 547 F.2d 575, 580 (D.C. Cir. 1976), cert. denied, 431 U.S. 966, 53 L. Ed. 2d 1062, 97 S. Ct. 2923 (1977). A Special Master's conclusions of law are reviewed de novo. Id.
The burden of demonstrating that a Special Master's factual findings are clearly erroneous falls upon the objecting party. Id. A finding is clearly erroneous if it is without substantial evidentiary support or was induced by an erroneous application of the law. Cuddy v. Carmen, 246 U.S. App. D.C. 25, 762 F.2d 119, 123 (D.C. Cir.), cert. denied, 474 U.S. 1034, 88 L. Ed. 2d 576, 106 S. Ct. 597 (1985). A reviewing court may set aside a finding if, based on the entire record, with due regard for the Special Master's opportunity to judge credibility, the court is left with the definite and firm conviction that a mistake has been made. Oil, Chemical & Atomic Workers, 547 F.2d at 580. In the absence of clear error, however, a Special Master's findings must be affirmed, even if the Court thinks they are against the weight of the evidence, Case v. Morrisette, 155 U.S. App. D.C. 31, 475 F.2d 1300, 1307 (D.C. Cir. 1973), or is convinced that it would have decided the case differently, Cuddy, 762 F.2d at 123. The clearly erroneous standard applies even when factual findings do not rest on credibility determinations but are based on physical or documentary evidence or inferences from undisputed facts. Oil, Chemical & Atomic Workers, 547 F.2d at 580. The standard does not depend upon whether a fact is characterized as "subsidiary" or "ultimate." See Pullman-Standard v. Swint, 456 U.S. 273, 287, 72 L. Ed. 2d 66, 102 S. Ct. 1781 (1982).
After a hearing, the court may adopt the report of the Special Master, modify it, reject it in whole or in part, receive further evidence, or recommit it to the Special Master with instructions. Fed. R. Civ. P. 53(e)(2).
The parties' objections to the six reports under review involve discovery issues, liability issues, and damages issues. Defendant's objections on discovery issues will be overruled. The Special Master carefully considered the arguments of the parties, rejecting proposals of both parties in order to achieve the just and efficient resolution of the claims in this case. Defendant's claim of unfair surprise is without merit.
The liability issues are treated below. The damages issues will be addressed in a later opinion, after further hearing.
A. Burdens of proof in the Teamsters hearings
Defendant objects to the Special Master's analysis of a claimant's burden of proof and of the standard applicable to defendant's showing of legitimate, non-discriminatory reasons for a rejection or a failure to hire.
(1) Claimant's burden of proof
The law governing a claimant's burden of proof at the post-liability remedial stage of a class action pattern and practice discrimination case was established by International Brotherhood of Teamsters v. United States, 431 U.S. 324, 52 L. Ed. 2d 396, 97 S. Ct. 1843 (1977).
The [plaintiff] need only show that any alleged individual discriminatee unsuccessfully applied for a job and therefore was a potential victim of the proved discrimination.
Each claimant . . . must prove . . . by a preponderance of the evidence, that she applied for a position at issue in this suit during the time period relevant to this suit and that she was rejected for that position.
678 F. Supp. at 345 (emphasis added). In a subsequent order denying defendant's motion for reconsideration, Judge Richey quoted the Teamsters opinion again and ruled that a claimant's burden was to show that she "unsuccessfully applied for a job." Hartman v. Wick, 1988 U.S. Dist. LEXIS 19408, No. Civ. Act. 77-2019, 1988 WL 39856, at *1 (D.D.C. Apr. 15, 1988).
Defendant, focusing only on the language of Judge Richey's order of reference, argues that proof of an "unsuccessful application" is not enough. Defendant insists that a claimant must prove both that she applied for a position and that the agency considered and rejected her application. The argument is that, unless the fact of the agency's considered decision to reject her application is proven, it cannot be assumed that the agency made a determination not to hire her -- that without proof of rejection it would be just as likely that her application was lost or never acted upon.
The answer to this question does not rely upon whether the language of Judge Richey's order of reference trumps the language of his other two orders, but rather on the reasoning of Judge Richey's orders and of the Teamsters decision. In Teamsters, the Supreme Court reasoned:
The finding of a pattern or practice changes the position of the employer to that of a proved wrongdoer. The employer [is] in the best position to show why any individual employee was denied an employment opportunity. . . . The ...