*1 SEGAR, Henry et al. W.
v. SMITH, Attorney
William French
General, al., Appellants. et
Henry al., et W. SEGAR
Cross-Appellants SMITH, Attorney
William French
General, et al. 82-1541,
Nos. 82-1590. Appeals,
United States Court of
District of Circuit. Columbia
Argued Sept. 1983.
Decided June 1984.
As Amended June *9 WRIGHT, Judge:
J. SKELLY Cirсuit Rights Title Act of 19641 VII of Civil funda- proclaims of this most one nation’s unrealized, per- mental, principles: a yet if equality of son not be denied full shall employment opportunity account of sex, race, color, origin. religion, national or Title VII both intentional discrimina- bars artificial, arbitrary, or unneces- and sary In this equal opportunity.2 to barriers case we review a decision of the United for the District of States District Court Columbia, Civiletti, F.Supp. Segar v. (D.D.C.1981),holding federal that the (DEA) had en- Drug Agency Enforcement practice gaged pattern in a or of discrimi- agents nation its in violation against black comprising A class black of Title VIL suit and the agents initiated this in 1977 Finding Seldon, and case came to trial 1979. Atty., Asst. U.S. Robert C. Gen., against DEA black Cooper, Deputy Atty. Asst. had discriminated Charles (GS) D.C., Stanley salary, promotions, initial Washington, with whom S. Harris, D.C., Washington, grade assignments, at the work su- Atty., assignments, U.S. filed, evaluations, and Royce imposition were C. pervisory time the briefs and Lawrence, 711-715, Craig and Asst. Dis- discipline, Lamberth R. D.C., Washington, on the Attys., were reme- comprehensive trict ordered a Court brief, appellants in No. and for 82-1541 consisting of back- dial scheme a class-wide cross-appellants in No. 82-1590. award, pay promotion goals and timetables agents re- qualified to ensure black D.C., Lake, Washington, T. William with upper levels of promotions ceived to the Sugrue Stephen Thomas W. whom J. DEA, frontpay a class-wide award Kidder, D.C., Washington, were on qualified agents while compensate such brief, appellees in No. for 82-1541 they promotions they deserved. awaited cross-appellants in No. 82-1590. proceedings the court the course of the WALD, WRIGHT, ED- Before prejudg- request also denied for WARDS, Judges. Circuit in- preliminary issued ment interest and junction barring transfer or demotion filed Opinion by for the court Circuit (the injunction), Jackson Carl Jackson Judge J. SKELLY WRIGHT. agent subject was the of adverse black who employment immediately after his Concurring Judge decisions opinion filed Circuit testimony T. for in this lawsuit. EDWARDS. HARRY race, color, sex, (1976 origin; religion, seq. Supp. national & V or § 42 U.S.C. 2000e et 1981). or limit, (2) segregate, classify his em- or any employment ployees applicants or 703(a) Rights provides: of the Civil Act 2. Section deprive deprive way tend to which would or employment prac- It shall be an unlawful any employment opportunities individual of employer— tice for an adversely his status as an or affect otherwise (1) discharge or to fail refuse to hire or race, employee, of such individual’s because individual, any or otherwise discriminate sex, color, origin. religion, or national any against respect his with individual 2000e-2(a). applies That section conditions, § U.S.C. terms, compensation, privileges fully government, federal id. 2000e-16. § employment, of such because individual’s *10 appeal challenges liability On DEA the undertake resolution of the status of the determination, scheme, the remedial and injunction Jackson on remand. We affirm injunction. cross-ap- the Jackson Plaintiffs the trial court’s denial prejudgment of in- peal prejudgment the denial of interest. terest. liability determination, As to the DEA urges finding that the trial court erred in Background I. presented pro- that had sufficient DEA, agency an formed in 1973 within support any bative evidence to inference of the Justice Department, enforces this na- DEA, urges discrimination at and tion’s federal criminal concerning laws any DEA had in effectively event rebutted sale, illegal distribution, drugs. and use of plaintiffs’ showing. As to the remedial Establishing DEA, the government federal scheme, DEA argues that class-wide relief sought to drug consolidate enforcement ef- inappropriate imposition was and that forts that had spread theretofore been promotion goals and timetables both ex- among agеncies. several “Special agents” authority ceeded the court’s remedial under carry on the bulk of DEA’s criminal investi- Title VII and equal protection violated the gative work. employs 2,000 DEA about component of the Fifth Amendment Due agents, such and as of percent Process DEA 1978 seven argues Clause. also were Special black. agents perform Carl Jackson did showing not make a sur- veillance of justify suspected drug retaliation sufficient to prelimi- dealers, trans- nary injunction. “buys” drugs act prose- evidence for cutions, do work, related undercover devel- To appeal resolve this we have had to op prosecution cases for by United States plumb deepest some of complexities Attorneys, and, depending rank, on their adjudication. Title VII After careful re- supervise special other agents. Findings view, we affirm the District Court’s liabili- of Fact (Findings) ¶¶11-2, ty determination in entirety. its We also 693-695. affirm the trial court’s decision to use a class-wide backpay remedy, but we vacate The District Court made extensive find- backpay imposed formula and remand ings of concerning fact DEA’s employment for particular reformulation of backpay ¶¶ practices. 1-51, Findings award. We part also vacate the of the F.Supp. Though at 692-711. we need not remedy District Court’s pro- that mandates rehash the factual context of this case in goals motion and timetables. We do not entirety, its partic- we will review the facts hold that such remedies exceed a court’s ularly pertinent appeal. on issues authority remedial under Title VII. Nor do we hold that such remedies violate the Con- A. DEA’s Requirements Personnel Nonetheless, stitution. we find that Hiring. Civil Service Commission particular District goals Court’s order of entry Handbook establishes the minimum appropriate timetables was not on the requirements special level for agents. De- current factual record. Because the front- pending qualifications, special agents on pay remedy specifically was linked to the will enter at either GS-7 or GS-9. The promotion goals timetables, we vacate requirements entry at GS-7 are well, three part of the remedial order as years general experience year and one remand District for further Court specialized experience. appropriate require- consideration of remedies.3 preliminary injunction years general We affirm the ments for GS-9 are three against experience years demotion or specialized transfer of Carl Jack- and two expect addition, son and we experience.4 special agents District Court to are frontpay remedy only 3. We vacate appropriate because trial court finds such a course specifically pro- remand. trial court linked it to the timetables, prejudice motion and without to re- parties stipulated 4. The as to the Civil frontpay remedy instatement aof new if the general experience Service definitions of satisfy mini- agent must promotion investigators, and as criminal defined *11 placed in-grade requirement, be mum year of that one requires classification appropriate qualified” by list the “best in law experience be prior specialized their board, ranking and be selected rating and comparable work.5 or enforcement selecting official. In by appropriate agents Special Assignments. Work rating rank- making and determinations assignments de- variety of carry out the rely agent’s ing primarily on boards loca- influences the Race scribed above. appraisal, infor- performance recent most assignment. All other agent’s an tion of disciplinary action within the last mаtion on assign DEA will black being equal, things agent’s application and years, two and the large percentage agents to areas where agents chosen for the profile sheet. Those Race are black. suspected violators are then ranked numeri- qualified list best agents type of work also influences cally performance on a series of factors.6 perform agents tend receive. Black ranking not been Rating and boards have large amount of under- disproportionately for any particular guidance provided with generally infiltrates DEA cover work. various as- assigning numerical values to up, and from the bottom drug networks Findings agent’s performance. pects of an assumption that black on the operates 114, F.Supp. at 695. readily to infil- more able agents will be consisting primarily of organizations trate B. This Lawsuit agent’s an work The nature of blacks. January special agents In 1977two black important have an bear- assignments will DEA, representing all and an association prospects promotion. for ing agent’s on the brought alleging special agents, suit black desirable, Though undercover work is some engaged pattern in a that DEA had injures agent’s of such work surfeit against practice of racial agent opportunities because the promotion Title special agents in violation of VII black experi- unable to obtain the breadth is 1964, 42 U.S.C. Rights Act of of the Civil 23, Findings promotions. ence needed for § by Equal seq., 2000e as amended et F.Supp. at 705. Act of Employment Opportunity promotions At DEA from Promotions. § 1981). (1976 Supp. & V 2000e-16 U.S.C. GS-9, GS-11, and from GS-9 GS-7 in re- agents alleged discrimination These noncompetitive. from to GS-12 are GS-11 assign- cruitment, hiring, grade initial upon special agent promotion A receives a ments, assignments, evalua- salary, work completion year grade, of service in of one tions, discipline, promotions. See and by agent’s group su- (JA) recommendation Appendix 22. Complaint, Joint pervisor, by a second level su- concurrence court, the trial September On pervisor, approval by regional a DEA and Proce- pursuant to Federal Rule of Civil director. 23(b)(2), of all certified the class dure up through from GS- then served or had had been
Promotions GS-12 blacks who DEA, DEA, discharged special com- highest level at are GS positions or applied who had would receive such a petitive agency-wide. To (the (45); experience performance evaluations specialized experience. I See Joint Exhibit (10). (45); presented training expe- portions Within the breadth of of which are relevant (JA) 39-43). categories Appendix performance definitions These rience and evaluation Joint subcategories. Part II-B-l-a are discussed in detail Under breadth of are several infra. (8); experience experience supervisory are: infra. (6); complex investigation experience internal I, JA 40. 5. See Joint Exhibit (7); (6) security experience diverse domestic (7) foreign special experience; skills system imple- numerical was first 6. When the (4). performance evaluation are: most Under 1976, point as follows: values were mented in (25); supervisor’s rating annual com- recent (20); experience length experience breadth of (15); (5). Findings and awards ¶ ments (40); training DEA education and In 1978 F.Supp. at 695. system rating breadth as follows: modified the selected, multiple ables have been re- apply. Class the future Order of Certifi- analysis conducted, cation, gression generally JA 37. Before September essence, by computer. regression involving the claims parties trial the settled ex- hiring, impact potential measures each but discriminatory recruitment and planatory upon dependent variable vari- on the other is- could come terms holding explanatory able all other varia- Stipulation Settlement sues. See analysis yields figures bles constant. The Discrimination in Claims of Plaintiffs’ demonstrating how much of an observed Special Agents, Recruiting Hiring disparity race, in salaries can be traced to is common Title VII class JA As *12 opposed to any potential as of the other actions, bifurcated the the District Court explanatory variables. liability separate and remedial trial into discovery, the liabil- phases. lengthy After computer analysis The generally will also April The ity in 1979. issues came trial yield two other measurements that assist experts large in measure duel of trial was explanatory power evaluation of the sophisticated means armed statistical with regression. the The first is “T-Ratio.” proof. The probability T-Ratio measures the that the result obtained could have occurred The plaintiffs’ 1. case. The chance.7 The second is R2. R2 figure The range statistical and anecdo- presented a measures, extent, degree to a certain the of discrimination. statisti- tal evidence multiple regression analysis which a taken multiple lin- cal evidence included several explains disparities as whole observed regression analyses as well as num- ear dependent variable. considering the effects of ber of studies employment practices. particular average Having disparity observed an $3,000 salary of about white and between regression a form statisti Multiple is DEA, special agents ex black increasingly used in Title analysis cal VII Bergmann and perts, Professors Strasz measures the discrete influ actions that heim,8 regression analysis formulated a on a independent ence de variables whether and to what extent race discover salary as levels. pendent variable such See explained salary disparity. the observed Service, v. 674 F.2d Valentino U.S. Postal analysis their on a “hu experts based (D.C.Cir.1982). Typically the inde widely accepted A capital man model.” pendent in Title VII cases will variables builds on labor econo approach, the model level, race, experience age, education capital findings the human mists’ that regres step multiple levels. The first in a brings job as employee to a educa —such indepen specification of the analysis sion experience large measure de tion and — in (or explanatory) thought dent variables employee’s success. termines likely significantly dependent to affect Note, Prima Facie Beyond the Case proper explanatory variable. The choice of Law: Employment Discrimination Sta validity of the re variables determines Rebuttal, 89 Harv.L. tistical Proof theory, gression analysis. A coherent de (1975); I, Vuyanich 408 n. 90 Rev. prior particular to observation of the vised F.Supp. at 265-267. data, employed must be to select rele education, experts pri- selected Vuyanich Plaintiffs’ explanatory vant variables. See experience, prior nonfederal ex- Republic federal (Vuya Nat’l Bank Dallas independent (N.D.Tex. perience, and as the four I), race F.Supp. nich might explain salary dif- 1980), grounds, F.2d variables vacated other in- (5th Cir.1984). regarding Information these proper vari- ferential. When Bergmann figure particular and Straszheim both measure of Professors The T-Ratio for a 8. corresponds disparity num- teach labor economics at race-related hold Ph.D.’s and University figure. Maryland. Findings D. ber of deviations standard ¶ J. F.Supp. at 695. & Statistical Cole, Proof of Discrimina- Baldus tion 297 n. 14 dependent compu- only came from the action variables of that date.9 Because the pеrsonnel regression disparities terized JUNIPER information first measured in the tapes Department agents, including of Justice. Find- salaries all black those 117a-b, ings at 696. Profes- hired before race coefficient Bergmann study may disparities sors and Straszheim then ran have reflected regressions. They resulting continuing first evaluated the from the effects of salary disparities among prior causes of all discrimination that occurred post-1972 as of five dates: the first of Janu- rather than actionable discrimina- 1975, 1976, 1977, ary in and 1978 regression generated tion. This second study gener- following first of October in 1978. This results: following ated the results: RACE DATE COEFFICIENT T-RATIO RACE 1/1/75 -$ DATE COEFFICIENT T-RATIO .84 1/1/76 -$1,864 2.54 -$1,628 1/1/75 4.65 -$1,119 1/1/77 3.18 -$1,744 1/1/76 5.37 1/1/78 -$ 866 2.07 -$1,119 1/1/77 5.15 -$1,026 10/1/78 2.30 -$1,934 1/1/78 5.15 -$1,877 10/1/78 *13 4.50 7d, Findings F.Supp. IT 508 at 696. 117b, Findings F.Supp. at 696. Again significant salary disparity salary The race coefficient measures the agents comparable between with education disparities agents between and black white experience was revealed. The T-Ratios prior experience when education and are indicate every year, that for save figures held constant. The T-Ratio here possibility that the result could have oc correspond to standard deviations of four by curred chance atwas most one in 20. or five. See Baldus & J. Cole, Though figures D. high these are not at as Statisti- n. significance level of as were those of the cal Proof of Discrimination (1980)(hereinafter Cole”). & J. Baldus regression, they general first “D. still meet the higher Since a standard deviation level than ly accepted significance. test for statistical three indicates that the odds are less than moreover, regression, The second to tends in one a thousand that an observed result post-1972 understate the amount of dis chance, by could have occurred fig- these at DEA. post- crimination Because the ures indicate that the odds are far less than study among measures discrimination one in a dispari- thousand that the observed agents, study newer focuses on the any year ties for by could have occurred speed with which the new recruits make study generally chance. A is considered to way through their the lower levels of DEA. statistically significant when the odds relatively Promotions these levels are that the result occurred chance are at automatic, and discrimination thus has less Cole, best one in 20. See Baldus & J. D. opportunity to work its effects. Discrimi supra, at 297. adversely nation will most affect older agents contending Bergmann upper positions;
Professors
for
level
and Straszheim
regression
promotion
incorpo
then ran a second
decisions at these levels
to measure
salary disparities
discretionary
over the same
rate far more
time frame
elements and
agents
They
for
hired after 1972.
intended
leave more room for bias.
Part I-A
study
generate
to
supra.
study
some measure of the
does not
any
measure
effects of
post-1972
against
race discrimination at DEA after
discrimination
those
agents
hired before 1972. Since these
applies
1972. Title VII
to DEA in this
subject
statutory
began
July
9. Plaintiffs are
to the
on
limit
1972. See Memorandum
discrimination;
17, 1982,
period
Opinion, February
of actionable
under
at 3 n.
JA
liability may
period
Although
formally
Title VII
not accrue for a
n. 2.
116
1973,
created until
years
filing
more than two
before the date of
DEA was at its creation a consolidation of
complaint
Equal
agencies engaged
drug
an administrative
with the
Em-
other federal
enforce-
efforts,
ployment Opportunity
agents serving
agencies
Commission.
42 U.S.C.
ment
these
2000e-5(g).
period
agents.
In
§
this case
actionable
became DEA
evaluations,
sory
contending
discipline.
ones
been the
These
would have
positions during
time
upper level
general
also
testified about their
studied,
have been the
they would
frame
perceptions
hostility
of racial
at DEA.
would havе
on whom discrimination
ones
2.
DEA re-
DEA’s case.
Defendant
likely
operate.
problem
been most
sponded
plaintiffs’
ways.
case
several
respect
with
particularly severe
expert testimony
The rebuttal consisted of
half of those
race coefficient. Almost
attacking
methodological integrity
figure
were hired
to obtain this
studied
plaintiffs’ statistics,
explanatory value of
¶ 7c,
Findings
696.
analyses tending
alternative statistical
year
first
at the
they were in their
Since
discrimination,
show absence
testimo-
yet
study, they would not
time of the
equal
concerning
nial evidence
DEA’s
em-
promotion.
eligible
grade
for a
been
ployment opportunity programs, and cross-
significant
Having uncovered evidence of
plaintiffs’
examination of
anecdotal ac-
levels,
salary
plaintiffs’
discrimination
of individual
counts
discrimination.
exacting inquiry
experts undertook a more
expert
DEA’s first
was Dr.
practices
pin-
J. Wanzer
employment
into DEA’s
Drane,
taking
professor
was
an associate
point
of statistics
where
They
DEA’s initial
place.
University.
first examined
at Southern Methodist
his
assignment practices. Through re-
grade
testimony
methodology
he attacked the
analyses they determined
a suf-
gression
analyses.
statistical
He asserted
significance
of statistical
ficient level
analysis
had
failed
their
likely
percent
less
than
blacks were
explanatory
account for the relevant
varia
qualified
comparably
whites to have been
prior
experience,
ble of
law enforcement
For those
hired GS-9 rather than GS-7.
explanatory power
plain
and that the
*14
percent
hired after
blacks were
(the R2
salary
tiffs’
studies
and
T-Ra
likely
Findings
to be hired at
less
GS-9.
tio)
presented a
was
low. He also
more
too
¶ 9,
F.Supp.
experts
The
at 698-699.
suitability
critique
of the
generalized
of
assignments, supervi-
then evaluated work
for
regression methodology
measurement
evaluations,
discipline.
In all
sory
and
present
discrimination in the
situation.
analysis
categories
re-
three
statistical
696-697;
7f-n,
F.Supp.
Findings
II
significant
vealed
levels
discrimination
1850-1871;
(Tr.)
Transcript
Trial
brief
see
¶¶ 12, 14,
agents. Findings
against black
appellants at 36-38.
for
Finally,
F.Supp.
plain-
at 698-700.
critique
supplement
DEA offered
To
this
promotions at DEA.
experts
tiffs’
studied
analysis that tend-
an alternative statistical
up
GS-11 level were
Promotions
to the
an absence of discrimination.
ed
show
pro-
relatively automatic. The
found to be
Spradlin,
study prepared by Dr. B.C.
This
from
to GS-12 was 70
—
motion rate
GS-11
regression but an
not a
a consultant —was
percent
and
percent
for blacks
methodology known
statistical
alternative
generally ac-
whites. This differential met
approach all
analysis.
cohort
Under
significance.
cepted
levels
statistical
together at the same
start
employees who
posi-
in promotion
Differentials
rates for
found,
surveyed
of an
over
course
level are
tions above GS-12 were also
but—
comparative
sample
period and their
largely
of the small
size—
because
observation
salary
promotion
not achieve statisti-
is evalu-
these differentials did
and
progress
accepted
significance
lev-
generally
salary
Evaluating promotion
cal
and
dis-
ated.
F.Supp. at 701-702.
Findings
els.
agents
among DEA
who started
parities
level,
Sprad-
grade
Dr.
year and
the same
To buttress the statistical
significant
analysis suggested
lin’s cohort
testimony of discrimi-
introduced anecdotal
groups.
of 15
These
four
discrimination
ac-
This
consisted of
nation.
evidence
subgroups.
groups were broken into
four
agents
perceived
counts
several black
was found in two
Discrimination
grade
initial
against them in
per-
DEA
examined
assignments, supervi-
subgroups.
then
assignments, work
subgroups
files
rejected
sonnel
of those
statistical evidence10 and
both
showing
critique
discrimination and found that DEA’s
DEA’s
this evidence and
misclassified.
particular,
three individuals had been
alternative statistics.
classified,
properly
rejected
When these three were
court
DEA’s
plaintiffs’
claims that
study
significant
possess
explan-
showed no
discrimina-
statistics did not
sufficient
¶ 8,
697-698;
Findings
F.Supp.
atory power,
tion.
that the failure to account for
prior
Tr. at
experience
see
1909-1913.
law enforcement
skewed
studies,
analysis
and that DEA’s cohort
Testimonial evidence buttressed DEA’s
plaintiffs’ showing
rebutted
of discrimina-
presented
rebuttal. DEA
exten-
statistical
alleged
tion.
As
account
failure to
general
testimony
its efforts
sive
on
experience,
for law enforcement
the court
equal opportunity programs
establish
and
objection
held that DEA’s
“speculative
was
implement equal opportunity goals at the
incapable
rebutting plaintiffs'
statis-
agency. Through cross-examination of
showing.”
Moreover,
tical
Id. at 712.
witnesses,
plaintiffs’
sought
DEA also
analysis
court found that the “cohort
was
every particular
rebut
anecdotal account of
flawed,”
irreparably
primarily
because
discrimination.
methodology focused
groups
small
too
generate
statistically significant evi-
C.
District Court Decision
dence of discrimination.
Id. at
liability
Judge
1. The
determination.
hinged
Since DEA had
its
on this
defense
held
Robinson
that DEA had discriminated
effort to rebut
showing of race-
against
special agents
black
in violation of
disparities,
related
the District
find-
Court’s
VII
range
employment
Title
across a
ings
dispositive against
were
DEA.
practices. The
salary
court found that the
2. The remedies
Hav-
determination.
differentials between
arid black
white
ing
pervasive
DEA,
found
discrimination at
agents
discrimination,
were a result of race
separate
the District Court—in a
against
and that DEA had
remedial
discriminated
proceeding
grade-at-entry,
appro-
out to formulate
black
work as-
—set
evaluations,
priate
plan.11
signments, supervisory
remedial
essential ele-
promotions.
plan
backpay,
at 712-715. The ments of
were class-wide
finding
goals
timetables,
promotions
promotion
discrimination in
ex-
and class-
promotions
frontpay.
tended
Opin-
above the GS-12 lev- wide
See Memorandum
el,
though
even
(Remedial
(Mem.Op.)
court did
credit
ion
Order
Or-
*15
17,
plaintiffs’
der),
1982,
statistical
of
February
evidence
discrimina-
JA 114.
tion at that level because the statistics had
Backpay.
Class-wide
Rather than order
acceptable
achieved
of
levels
statistical
hearings,
relief
individualized
Int’l
see
significance.
finding
The court
its
based
of
States,
Brhd
Teamsters v.
United
of
discrimination at the upper levels on infer-
324, 361-362,
1843, 1867-1868,
proven
ences from
discrimination at the
(1977),
To these deterriiinations the Dis- plaintiffs’ salary would derive from first plaintiffs’ (which trict Court of regression study credited the bulk dispari- measured did, however, purportedly The court refuse credit most sions showed an absence race-re- 10. of plaintiffs’ specific anecdotal accounts of in- disparity lated at DEA. The District Court re- ¶514, Findings stances discrimination. jected proffered this evidence of DEA's nonlia- F.Supp. at 710. bility untimely. Opinion, See Memorandum supra note JA 116. sought hearing 11. DEA at the remedial intro- regression regres- analyses. its duce own These agents to be to all black including those hirеd was distributed among agents all ties all black 1972). every years for for at least two and year which GS-12 For before agents to 1979—the above GS-12. figures were available—1975 race figure would be the pool class-wide In the 3. Other issues. course by the number multiplied coefficient proceeding two other issues arose. Plain- agents. years For the before special black sought tiffs and were refused an award of the race coefficient after 1979 1975 and prejudgment backpay interest extrapolating back- would be derived Mem.Op. awards. See at 3 n. 116 n. 4. JA fig- from available and forward ward Also, during the time between the liabil- ures, extrapolated coefficient this and ity and remedial determinations the court multiplied by the number black would be preliminary injunction barring issued de- agents. agent special motion transfer of' black backpay pool would dis- annual The Opinion Jackson. Carl See Memorandum among eligible black evenly tributed 5, 1981, May Order JA 101. Short- and level agents. Only agents above the GS-9 after had ly Jackson testified at trial year question were made during the target he case became harassment agents at eligible. The court excluded eventually employment ac- .adverse discrimina- most GS-7 and GS-9 because including tions demotion and transfer. The higher levels found to occur at was was a District Court concluded there did, however, permit of DEA. court high likelihood these actions were in plaintiffs to forward individual come testimony, for retaliation Jackson’s suffered backpay seek for discrimination enjoined preliminarily Jackson’s therefore (viz. assignment to grade assignment initial demotion or transfer. GS-9). Any individu- instead of such GS-7 subtracted from al awards would be The Appeal. D. pool prevent double in order to class-wide appeals aspects DEA several of both the liability. Mem.Op. at JA 116. determinations, liability and the remedial and Timetables. Promotion Goals challenges injunction. also the Jackson upper Finding discrimination levels cross-appeal from the denial of Plaintiffs DEA, the ordered remedi- District Court interest. We consider prejudgment will promotion goals al and timetables. Since challenges liability separately DEA’s percent of agents up at least 10 black made decision, decision, and the the remedial agents every through level GS-12 consider injunction. We will then Jackson ap- percent goal court held a 10 was prejudgment claim for interest. propriate for all levels GS-12. above goal meet this Mem.Op. at To JA Liability Determination II. promote DEA one the court ordered Analysis Framework agent every for white A. black two had percent representation until 10 black a Title VII action plaintiff A *16 (or five met at GS-13 and above until been prove liability under two theories: dis can passed). years had Id. disparate impact. or In a treatment parate plaintiff a seeks disparate treatment claim compensate Frontpay. To Class-wide employer intentionally prove an awaiting promotion under black favorably people some less than plan “treats goals the court estab- and timetables race, color, religion, of because their frontpay formula. others lished a class-wide Teamsters, sex, origin.” or su also national Frontpay pool calculations were based 15, at at 335 n. 97 S.Ct. 1854 salary regres- pra, 431 U.S. from the extrapolations essential, motive adjusted of illicit sion, pool n. Proof was to be but but, especially alleging in class-wide cases DEA had made under progress reflect discrimination, may motive be in illicit goals Remedi- promotions and timetables. showing dispari- from a sufficient of 9-12, pool ferred at JA 126-129. al Order 1266 plaintiff analysis. of the
ty
dispаrate impact
pattern
class
cate
A
between members
comparably qualified members of the
practice disparate
and
or
treatment case shares
majority group.
Such
Id.
class-wide alle-
typical disparate impact
with a
suit the
gations
are commonly
of discrimination
re-
allegation
employer’s practices
that an
practice”
or
“pattern
ferred to as
cases.
systemic
have had a
adverse effect on
Teamsters,
Supreme
In
Court
plaintiff
members of the
class. See Team-
whether the
question
noted that “the
com-
sters,
15,
supra, 431
n.
U.S.
336
pattern
pany engaged
practice
in
or
a
of
(“Either
theory may,
1855 n. 15
of
* * *
discriminatory
involves con-
[action]
course,
particular
applied to a
set
be
of
trolling legal
relatively
that are
principles
facts.”); Vuyanich
Republic
v.
Nat’l
clear,”
334-335,
S.Ct. at
and
id.
Bank
(Vuyanich II),
Dallas
of
went on to characterize
case
one of (N.D.Tex.1981),
vacated on other
disparate
A claim that the
treatment.
sum grounds,
(5th Cir.1984).
F.2d
of
results' in
employer’s practices
an
less Though
plaintiff
a
class
initially
will
seek
favorable treatment
members of the
among
disparity
comparably
show a
plaintiff
comparably qualified
class than
qualified
prove disparate
in order to
treat-
may justify
whites or males
an inference ment,
may
employer
seek to
by
defend
company’s
that “discrimination was the
pointing
specific, arguably
to a
nondiscrimi-
procedure
operating
regular
standard
—the
natory, employment practice as the cause
practice.”
rather than the unusual
Id.
disparity.
of the observed
In such situa-
336,
1267
systemic
disparate impact
disparity
ment and
models
observed
is the
result of
aims,
proof sequences
specific
practice
and the
employment
different
that cannot
with
reflect
differ
justified
necessary
employer’s
associated
each
these
as
Disparate treatment
at dis
proof
ences.
aims
Consequently
business.
the
of each
covery
of
dis
and elimination
intentional
showing
disparity
claim will involve a
of
disparate
crimination.
the
treatment
On
minority
groups
between the
and majority
persuading
the
burden of
claim
“ultimate
employer’s
in an
workforce. These two
the
inten
the trier of fact that
defendant
factors—the difference in ultimate burden
against
plaintiff
tionally discriminated
the
proof
similarity
proof
of
the
of dis-
plaintiff.”
with the
remains
all times
parity
understanding
our
inform
of
—must
Dep’t
Community
v.
Texas
parties
the intermediate burdens that the
of
Affairs
1089,
248, 253,
Burdine, 101 S.Ct.
U.S.
to such an action face.12
(1981).
1093,
the
Since
L.Ed.2d
plaintiff
A
class seeking to
try
likely
meet this
plaintiff class will
to
pattern
practice
disparate
show a
or
of
proving disparity
suf
ultimate burden
“carry
must
treatment
the initial
of
burden
permit
ficient to
an inference of discrimina
offering
adequate
evidence
to create an
tion,
carry
of
plaintiff must
the burden
inference that” employment decisions were
persuasion as
the existence of the dis
to
discriminatory
“based on a
illegal
criterion
discovery
Disparate impact aims
parity.
Teamsters,
Act.”
under the
supra, 431
facially
employ
and elimination of
neutral
usually
U.S.
S.Ct. at 1866. This
adversely
minori
practices
ment
affect
providing
means
evidence — often in statisti
justified
necessary
as
ties and cannot be
disparity
cal form—of a
in the position of
employer’s
disparate
On
an
business.
the plaintiff
compar
members of
class and
plaintiffs
impact claim
bear the burden of
qualified
ably
Similarly,
whites.
on the
persuasion as
the existence
a race-re
of
disparate impact challenges
specific
em
disparity
by an employment
lated
caused
practices
ployment
plaintiff
must
class
but,
practice,
once
have made
practices
present evidence that the
have a
showing,
employer
bears the burden
disproportionately adverse effect on the
persuasion
necessity
as
to the business
prima
How
plaintiffs.
far this
facie show
II,
practice.
Vuyanich
supra, 521
See
ing
carry
plaintiff
will
ulti
toward its
F.Supp. at 660.
depends
persuasion
mate
on
burden
both
Though
in this
allocations
differ
strength
evidence
way,
important point
crucial
of conver-
response.
the nature
the defendant’s
like the
gence exists in class actions
or
dis-
A
must
its re
present
pattern
practice
case. Both
defendant
tailor
im-
parate
disparate
sponse
plaintiff’s
claims and
nature
treatment
Teamsters,
systemic
at 360
pact
proof.
claims are attacks
U.S.
practices.
pat-
general,
Second,
F.Supp.
521
at
employer’s
662-
the
effort
663;
Bartholet,
pattern
practice
rebut the
claim
see
Application
artic
Title
ulating
legitimate nondiscriminatory
a
ex
Places,
VII to
High
Jobs in
95 Harv.L.Rev.
planation may
putting
have the effect of
945,
1004-1006
before the court all the elements of a tradi
only
difference between this situa-
disparate impact
By
expla
tional
case.
its
tion and the
disparate
traditional
impact
disparity
employ
nation of an observed
the
case is that in the
plaintiff
latter the
articu-
typically pinpoint
employment
er will
an
lates the employment practice causing the
(or
practice
practices) having
disparate
impact
adverse
and forces the employer to
impact
protected
on a
class. And to rebut
it,
defend while in the former
employer
the
plaintiffs’
employer
case the
typically
will
articulates the employment practice and
required
showing
to introduce evidence
go
must
then
on to defend it.
employment practice
that the
Accord
in fact caused
II,
disparity.
Burdine,
Vuyanich
supra,
F.Supp.
observed
See
su
at 663.
pra, 450
U.S.
S.Ct. at 1096 Some case law from other circuits has ex-
(“defendant
normally
will
attempt
prove
pressed a
apply disparate
reluctance to
im-
the factual
explanation”).
basis for its
pact analysis in this situation. Two con-
situation,
this
plaintiffs’ prima
between the
(1)
cerns fuel this
perceived
reluctance:
showing
disparity
facie
and the defend
placing
unfairness of
on the defendant the
explanation
ant’s rebuttal
of the disparity,
articulating
dual burden of
which of its
disparate
essential elements of a
im
employment practices caused the adverse
pact
placed
case will have been
before the
impact at issue
proving
the business
ripe
trier of fact. Such a case is
for resolu
necessity
practice, see,
of the
e.g., Pouncy
using disparate
tion
impact analysis.1
v.
Americа,
Prudential
Ins. Co.
6Though
plaintiffs
disparate
in a
treat
(5th Cir.1982)
F.2d
(plaintiff re-
ment
persuasion
case bear the burden of
as
quired
point
specific employment
to the existence
disparity,
of a
the defend
practice causing
impact
adverse
“in order
ant bears the
proving
burden of
the busi
fairly
parties’
allocate
respective
necessity
practices
ness
causing the
trial”);
(2)
burdens of
the risk
disparity.17
Co.,
Paper
Albemarle
employer
that an
will
justify
be forced to
“specialized
tapes
For
con-
Handbook.
Department’s
Commission
JUNIPER
Service
Civil
—to
the District
reasons,
that
we hold
Based on
analytical models.
three
their
struct
plaintiffs’ decision
approval of
reasonably
Court’s
avail-
other evidence
this and
analyses
from their
exclude this variable
them,
possibly have
they could not
able
not erroneous.
was
re-
applicable Civil Service
quantified the
experience” in a
“specialized
quirement of
defini-
First,
Service
operative Civil
require-
made the
highly
that would have
is
manner
experience”
“specialized
tion of
intangibles
analysis. Per-
amenable to statistical
measures such
ment
subjective.
It
“resourcefulness,”
“ability
proxies
haps
objective
DEA has distilled
“ingenuity,”
as
“tact,”
conclusions,”
prior
experience”
at sound
“specialized
to arrive
for
—such
clear that
The law is
JA 40.
might
“discretion.”
been
experience
have
police
—that
objec-
must account
proof
plaintiff’s
devoid of
but
the record is
quantifiable,
subjective
exclusion
tive
qualifications;
in fact done so.
that DEA has
any evidence
encompassed
as those
such
requirements,
underlying Title VII and
policies
Both
experi-
“specialized
in the definition
suggest
that
general principles of evidence
v.
entirely proper. See Davis
ence,”
is
production of such evidence
burden of
F.2d at 964.
supra,
Califano,
Trout
must rest with the defendant. See
clear. Such
equally
is
exclusion
reason for
n. 33
Hidalgo,
v.
883 &
may
serve as a veil
well
subjective criteria
(D.D.C.1981) (“[o]ne
purpose of dis
clear
illegal
legitimacy behind which
seeming
employers to
to force
crimination law is
so,
operating.
If
meas-
is
processes into the
employment
bring their
a factor to
relation of such
urement
(D.C.Cir.1983),
aff'd,
1278
Court,
passage
quoting from Team-
“the statistical
may become crucial when
sters,
longlasting
for
stated:
adequately account
“Evidence
does not
evidence
composition
specialized qualifications
gross disparity between the
‘the diverse
”
question].’
necessary
positions
general
a
and that of
[the
of workforce
**
Valentino,
(quoting
supra,
may
significant
Even if this
is insuffi
to rework a
when,
ease,
plaintiffs’ prima
cient
invalidate
facie
statistics
this
the omitted
case, might
legiti
it
allegedly
subjective
nonetheless serve as
variable was
too
to ad
must,
nondiscriminatory explanation
quantification.33
mate
A
the mit of
defendant
however,
disparities
observed
showing
between white and
make some credible
words,
agents.
black
plaintiffs’
other
even if
the omission skewed
statistics.
plaintiffs’
preclude
not
employer
omission did
them At a minimum the
must raise a
making
genuine
as a matter of law from
veracity
their initial
issue
fact as
case,
this,
explanation might
accomplish
proof,
DEA’s
serve to
and “[t]o
preclude
forth,
the ultimate inference
discrimi
clearly
defendant must
set
against
through
black agents
nation
under the
of admissible
dis
introduction
evi
parate
theory. Claiming
dence,
treatment
the reasons for” the observed dis
factor,
race,
Burdine,
explains
dispari-
parity.
sters
required,
371-372,
at 1872-1873.
“usually”
97 S.Ct.
hearings are
U.S. at
individual
Teamsters,
431 U.S. at
consideration,
District
After careful
note that
went
at
the Court
only
relief
Court here ordered class-wide
specific remedies to
determining the
“[i]n
The court
above GS-11.
afforded,
is 'to fashion
court
district
impeded
had found that discrimination
particular circumstances
relief as the
such
turn;
every
blacks faced
black
require
restitu
may
to effect
a case
assign-
grade
hurdles in
initial
extra
DEA’s
”
quot
tion.’
Id.
ments,
supervisory
assignments,
eval-
work
Franks,
supra, 424 U.S.
ing
uations, imposition
discipline,
promo-
*38
often
Later courts have
at 1264.
S.Ct.
higher
At the
levels the cumulative
tions.
in which
Teamsters
faced situations
pervasive discriminatory
of these
effect
accom
hearing preference had to bend to
severe, and the increased
practices became
purposes. Pri
VII’s remedial
modate Title
gave
subjectivity in evaluations
discrimina-
required hearings
marily, courts have
to
its effects.
tion more room work
percolated
so
has
when discrimination
“exact reconstruction of
such a situation
through
employment system
any
history,
work
as
each individual claimant’s
employ
attempt
reconstruct
individual
to
occurred, is not
if
had not
discrimination
drag the court into “a
would
ment histories
only
impractical.” Pettway,
imprecise but
hypothetical
judgments.”
quagmire of
supra, 494
at 262. The District Court
F.2d
1147,
499
Thompson Boyle,
v.
1170
major
found that
specifically
here
“[e]ach
(D.D.C.1979) (quoting Pettway
Ameri
v.
process
in
at DEA
promotion
criterion
Co.,
211,
Pipe
494 F.2d
260
can Cast Iron
discrimination, making
dis-
was tainted
Cir.1974),
denied,
1115,
(5th
cert.
process
promotion
crimination in the
1020,
(1979)),aff'd,
74
S.Ct.
59 L.Ed.2d
99
Any attempt to recreate the
cumulative.
(D.C.Cir.1982);
257
Hamheed v.
678 F.2d
employ-
employment histories of individual
Ironworkers,
506,
637 F.2d
Int’l Ass’n of
would result
ees absent discrimination
(8th Cir.1980).
also Stewart v.
520
See
1,
2
Mem.Op. at
n.
JA
guesswork.”
mere
445,
Corp.,
F.2d
452-
Motors
General
reviewing
determina-
115.
role in
Our
(7th Cir.1976) (pre-Teamsters),
cert.
framing
“The
a remedial
limited.
of
denied,
2995,
97 S.Ct.
U.S.
largely
the hands of the
is left
decree
(1977);
v. Colgate
L.Ed.2d
Bowe
Pal
judge,
assessment of the
district
whose
(7th Cir.1969)
Co.,
416 F.2d
molive
judgment
a factual
of the situation is
needs
(same).
* *
only for clear error
*.’’
reviewable
Applying
principles
these
Sawyer, supra,
684 F.2d
McKenzie
present controversy, we note at the outset
willy
that the District Court did not rush
perceive no error
the District
We
nilly
impose
to
relief. The court
class-wide
impossible
finding that it would be
Court’s
hear
specifically ordered individual relief
employment
to
histories of
reconstruct
backpay
All
of
ings where feasible.
claims
agents. Examination
DEA’s senior black
GS-11
for discrimination at levels below
decisions,
promotion
as difficult
discrete
hearings.
will be resolved
individualized
be,
might
will not suffice.
as even that
Mem.Op. at
At
levels
JA 116.
these
promotions
for
deci-
decisive criteria
hearings
appropriate
are
be
individualized
evaluations,
supervisory
breadth
small number
discernible deci
cause a
sions—
history,
experience,
disciplinary
see
grade assignment to initial
sions as
supra
themselves found to
Part I-A
agent.
will
in issue for each
promotions
—were
illegal discrimination. The
be tainted with
are akin to those in
These determinations
discrimination had
court found that
skewed
Teamsters,
hearings
required
where
agents,
black
but the court
evaluations of
single
to
involve a
determination
were
knowing
way
no
how
applied could have had
individual
had
whether
agent’s
particular
much more favorable a
particular line driver
qualified
and were
been, or
fair
purpose
evaluation
have
how a
at 1869. A core
should
Title VII is “to
might
agent’s
evaluation
have affected
persons
injuries
make
whole for
suffered
obtaining
particular promo-
chances for
employment
account
unlawful
dis
Similarly,
dis-
tion.
the court found that
Co.,
Paper
crimination.” Albemarle
su
assignments
leaving
in work
crimination
pra,
—
jured, this not as section should be read average sions the measure of as discrimina requiring the backpay effective denial per agent. regression tiоn The first meas large DEA’s dis numbers whom against ured discrimination all black injured crimination has in order to account agents, including hired those before 1972. for the risk that a small number of unde study may This therefore have reflected serving backpay. might individuals receive continuing the of some effects discrimina squared Such a with result cannot be what occurring prior to 1972. Parts Supreme Court has told us about I-B-l, Since supra. II-B-l-b the actionable authority nature of court’s un remedial 15, July period in this case on commenced scope der Title VII. of a district “[T]he 1972, regression might, of the first use powers court’s remedial under Title VII is according argument, amount to DEA’s purposes determined of the Act.” Teamsters, compensation for nonactionable dis- some salary disparities occurred fleeted in the Though remedial order
crimination.37 portion small begins to after 1972 or that backpay that states specifically 15,1972, “continuing pre-1972 discrimina- Remedi- effects” only July see as accrue disparities argues tion reflected in was DEA that a JA al Order at “continuing of a violation.” See id. disparities black and result portion of the between (and finding, having The court made neither that time thereaft- agents as of white Liability found in the Determination that before er) by discrimination was caused pre-1972 liable discrimination had been “neither DEA is therefore and that nor proven,” admitted portion. for plausibly rely cannot on con- the court Liability in the found Court The District tinuing theory in Remedial violation pre-1972 dis- “while Determination grounds using salary for the first Order may affected statistics crimination * * regression backpay as a for the benchmark *, largely con- post 1972 discrimination pool. 117i, Findings statistics.” to those tributed plaintiffs’ regression may It be that first also noted in F.Supp. at 697. court only post-1972 regres- reflect discrimination. does Remedial Order complete present failure to evidence the DEA’s “provide an accurate measure of sions showing pre-1972 in the re- paid at DEA were extent which blacks certainly supports view. It qualified gression comparably whites than less [and] * ** dispari- may portion be that provide appropriate basis also ty continuing pre- effects of that reflects Mem.Op. JA classwide relief.” omitted). might be actionable on (citation to dis- 1972 discrimination We are reluctant continuing theory. may it violation Or finding on this factual the trial court’s turb continuing small effects Sawyer, supra, that the amount McKenzie issue. See plausibly be out of the record cannot factored F.2d 75. Nonetheless *40 so, study; precise if meth- stands, the if no more we cannot affirm it now as ascertaining amount of action- use ods of the to the first District Court’s decision reasonably are available calculating for able discrimination regression as a basis court, court would be faced with to the backpay pool. overcompensatory using mildly either a that Although properly the court found regression or a based on first formula support to evidence sufficed significantly undercompensatory formula discrimination, inference of actionable regression. Use of on the second based supra, court’s reliance see Part II-B-l-b regression the first under these circum- regression to back- on the first determine might permissible. stances be problematic. found pay is The never court cannot, however, mat We resolve these regression’s race coefficient that all that present appeal. ters As Su post-1972 discrimina- reflected actionable Trout, preme in v. have had Court stressed Lehman tion.38 To do so the court would — at -, re- 104 find either that all discrimination 2 event, (1980). any argument is far from a that of the 720 R DEA also makes an use plain salary regression overсompensates wholly study’s accuracy. of a first reliable measure reasons, study. this DEA tiffs based on the R values for supra. we hold See note For these that, rough argues the R2 value was because objection on R is with that DEA's based values .50, ly only for about half of the race coefficient out force. years question actually represents race-re argument disparity. reveals a basic lated This course, the court need not have found that 38. Of 2 figures. misunderstanding meaning of of the R regres all reflected in the discrimination only of the R does not mean that half An of .50 occurred after 1972 in order to find the sion Rather, is coefficient attributable race. race regression prima facie sufficient make out salary disparity that half of the total it means See Part II case of actionable discrimination. agents is and white attributable between black Service, B-1-b; v. U.S. Postal 674 F.2d Valentino totality of examined in the the factors (D.C.Cir.1982). 71 n. Fisher, Multiple regression. generally Re gression Legal Proceedings, Colum.L.Rev. * * * scrupulously respect require this court must of the court shall promo- * * * factfinding prerogative of the District tion of an employee, individual as an * * * Court. In this case the District Court has if such individual was refused ad- * * * yet determined whether the first re- any vancement for reason other than * * gression only post-1972 discrimina- reflects *.”). DEA argues also tion, continuing whether violation oc- goals that such and timetables violate the might permit compensation curred that for equal protection component of the Fifth continuing regression whatever effects the Amendment to the Constitution. reflects, portion the small or whether Though continuing might effects that DEA’s claims are not
nonactionable with superficial out some regression, appeal, 706(g) be reflected in the cannot be Section remand, must not be requiring factored out. On if the District read as an exact fit any to find that between those employer’s Court unable these whom an dis exists, three crimination factual circumstances has eligi victimized and those backpay promotion court must devise new formula. ble under goals and timetables. language on which DEA relies was C. Promotion Goals and Timetables ensuring aimed at that Title VII was not read giving authority remedy courts The District Court ordered that one black itself, racial i.e., imbalance as an evil promoted every posi- two whites to any finding absent illegal discrimina tions above at DEA GS-12 blacks until tion caused the imbalance. See EEOC up percent made of all at each AT&T, (3d Cir.1977), 556 F.2d grade years above or until GS-12 five after denied, cert. the order DEA objects was entered. L.Ed.2d 1161 language aspect remedy should for the same support not be stretched to objects requirement
reason that it
to class-wide back-
precision
pay:
fashioning promo
absolute
agents might
some individual
receive
goals
they do not deserve. DEA
timetables when such a re
ar-
promotions
quirement
gues
promotion goals
would frustrate
and timetables
effective relief
exceed a
for those
power
court’s remedial
under
who were victimized
discrimin
Title
every person
VII unless
potentially
Every
Appeals
who
ation.39
federal Court of
benefits from the relief
approved
has been individual-
this nation has
remedial use of
ly
discriminatorily
shown to have been
goals
requiring
de-
and timetables without
specific promotion.
nied a
According
every potentially eligible person
to each and
*41
DEA,
706(g)
Section
mandates this result.
be shown to have been victim of discrimin
§
(1976)(“No
2000-5(g)
See 42 U.S.C.
imposition
quotas
order
ation.40 Nor can the
of
array
quotes
employer’s
DEA has
amassed an
of
from
workforce when such an imba-
legislative history
support
Title VII’s
in
of its
lаnce had not been shown to be the
of
result
promotion goals
contention that
and timetables
discrimination.
they
any
are invalid if
benefit
individuals who
proven
are not
of
victims
discrimination.
257,
Thompson
Sawyer,
40. See
v.
678 F.2d
294
reply
appellants
Many
brief for
at 20-22.
in
Service,
(D.C.Cir.1982); Chisolm v. U.S. Postal
1964,
Congress spoke
again
in
in 1972 when
(4th Cir.1981);
City
1294
consideration of
for additional
and remand
be said
proven discrimination
remedy
in
remedies
this case.
propriety of such
guarantees of
Constitution’s
violate the
the current
protection. Whatever
equal
reme
determining whether less severe
find
action absent
affirmative
status of
the court
prove equally effective
might
dies
discrimination,
Supreme Court
ing of
the em
must evaluate the likelihood
un
is not
relief
clear that such
has made
good
remedy
ployer
implement
will
remedy proven
used
when
constitutional
Ra
Firefighters Institute
faith. See
for
Charlotte-
v.
See Swann
discrimination.
Louis, 616 F.2d
Equality
City
v.
St.
cial
of
1,
District, 402 U.S.
Mecklenburg School
(8th
denied,
350,
Cir.1980),
452
364
cert.
1267,
(1971); Bakke
554
28 L.Ed.2d
S.Ct.
91
938,
3079,
determination. arguments Neither of DEA’s con IV. Other Issues vinces us that a mistake has made. been Injunction A. The Jackson DEA’s argument first primarily turns the trial court’s credibility evaluation of the proceed During course of this of DEA’s appel witnesses. for See brief ing preliminary the District Court issued a lants 73-75. are extremely We reluctant injunction against the demotion trans to overturn a District Court on a matter of fer plaintiff of Carl Order Jackson. credibility, and we so decline to do here. 5, 1981, May Agent Special JA 113. Jack Court, moreover, The District son, marshalled highest ranking the second black support finding extensive evidence to its DEA, agent at had claimed that the demo causation. Opinion See Memorandum transfer, tion and and other harassment 3-10, May 1981 at JA 103-111. DEA’s particular officials, from a few white DEA argument second is frivolous. DEA ar were retaliation for testimony Jackson’s gues that irreparable harm could not have undisputed in this It is prior case. found the trial ordered been because court testimony employment Jackson’s his histo relief, obviating thus the need class-wide ry exemplary at DEA was after agents individual forward black come testimony signifi his he was the focus stage. argument grossly at the relief This cant official criticism from these individu facts; aware, DEA misstates the is well als, culminating in his demotion trans the trial court also ordered individualized fer. hearings for all claims of discrimination The District Court found that Jackson GS-11. Thus the District was below Court had showing made a sufficient of likelihood wholly anticipating if correct in harm black success on merits of his claim of coming were deterred from forward 704(a) retaliation in violation of Section stage. the relief § (“It VII, 2000e-3(a) Title shall U.S.C. While we the District deci- affirm Court’s employment an practice unlawful for an grant preliminary Special sion relief to employer аgainst any to discriminate of his * * * Jackson, Agent note claim we that his employees opposed because has he illegal definitively has retaliation not been any practice employment made unlawful ** remand, expect resolved. On we the Dis- *.”). practice by subchapter appropriate trict Court to take action on high irrepa- court also found likelihood this matter. injunctive rable harm if the relief were *43 other agents, denied because black fearful Prejudgment B. Interest. reprisal, of similar would not forth at come proceed- impending phase cross-appeal the relief Plaintiffs the trial ing prejudgment to individual denial demand relief. court’s interest.
1296 taken, must questions. Care be complex prejudg- the issue dealt with This circuit however, requirements to that such ensure against in Title VII actions ment interest that ways in applied are not inflexible in v. government Blake the federal Califa- were they which the for purposes thwart that (D.C.Cir.1980). In no, F.2d “mini- requirements as the adopted. Such that, for principle the case we followed test, pur- the objective qualifications” mum will immunity, a court sovereign reasons of evidence, the and ported need for anecdotal against the United interest not award hearings preference individual remedial for specifically autho- a statute unless States applied as Title VII’s so advance must be to Congress’ evinces rizes such award remedying em- ferreting and goals of out v. United Smyth do to so. See intention affirming In the 252, ployment discrimination. 353, 248, States, 58 S.Ct. determination we liability District Court’s (1937). ask to Plaintiffs us 82 L.Ed. sufficiency of that for the stress tests in v. the decision Blake reconsider Califa- in applied should Congress modelled ground on no the mechanistic, way. or ritualistic” “rigid, on the National remedial scheme Title VII’s Furnco, S.Ct. at supra, 438 U.S. at Act, inter- permits which Labor Relations use affirming In the District Court’s mer- 2949. argument is without This est awards. backpay, we stress that the of class-wide Title did VIPs Though Congress model it. exercising equita- NLRA, primary duty of court the see Albe- provisions on remedial Title power VII to remedial under ble Co., U.S. at Paper supra, 422 marle re- complete a decree affords in fashion Congress did so 95 S.Ct. when illegal discrimi- victimized ap- lief those Title VII the NLRA nor 1964 neither nation. con- government. Thus plied to the federal as a mod- reliance on NLRA gressional part and re- in and vacated Affirmed in- implies nothing congressional
el about part. manded in Title VII permit interest awards tent to ADDENDUM the United When against suits States. Title in 1972 to Congress 12, 1984, amended VII opinion On June while the bring government pro- under its printing the federal in the the instant case was visions, Congress no intention deci evinced issued its stage, Supreme Court sovereign immunity interest waive No. Firelighters Local Union sion Stotts, - U.S -, Thus affirm the District we awards. considering the is prejudgment denial of interest. L.Ed.2d Court’s remand, appropriate remedies sues should, course, con District Court V. Conclusion opinion in Supreme Court’s sider case, many This like Title VII class ac- Stotts, Ta applicable. extent tions, presented a host complex legal has Co., Washington Post v. The voulareas review, issues. After careful we affirm (D.C.Cir.1984)(In light F.2d liability the District Court’s determination precedent, Supreme Court of recent “[t]he entirety. in its also We District affirm course, most efficient and course most of a Court’s remedial use class-wide back- the valid discretion of our respectful of scheme, pay particular but vacate the cal- judge, is to remand reconsidera district backpay culation of formula. We va- tion”). promo- imposition cate court’s of strict goals timetables, and class- EDWARDS, Judge, HARRY T. Circuit frontpay goals approach wide tied concurring: timetables. remand the District On I am in full accord with the result pro- Court is to conduct further remedial majority opinion reached and with opinion. ceedings consistent with this separately most of its rationale. I write particular evidentiary pro emphasize points concerning certain requirements parties’ in a pattern practice cedural have evolved burdens greatly disparate Although Title VII cases can aid resolution of treatment case.
1297
record,
presents
complex
a
factual
the
“employment practices
case
lizes
that are facial-
controlling legal
ly
principles are clear.
their
neutral in
treatment of different
potential
only groups
some
in
There is
for confusion
but that
fact fall more
harshly
one
important
group
there are several
another
because
than
justi-
cannot be
legal
by
in
fied
implicated
necessity.” Teamsters,
theories
our
business
interrelated
however,
15,
431
Correctly understood,
U.S. at 336 n.
97
analysis.
S.Ct. at
15.
1854 n.
See also
opinion
Paper
consistent
Albemarle
majority
only
Moody,
the
is not
Co. v.
422
405,
2362,
U.S.
95 S.Ct.
Supreme
precedent
is in fact
tion “select[s]
case,
recog-
it
and
must be
pattern
practice
differ-
pattern significantly
in a racial
pattern and
respects
in some
a
nized that
pool
applicants."
of the
ent from that
disparate
converges with a
practice case
425,
Co., 422 U.S. at
Paper
Albemarle
impact
on
predicated
case. Actions
either
made,
showing is
If
the
this
S.Ct.
2375.
systemic
on
re-
theory involve attacks
the
necessity"
“business
defendant can raise
employment practices. While the
sults of
defense,
prevail
and will
if
an affirmative
plaintiffs
pattern
practice
in
suit will
a
and
challenged
that the
proving
successful
focus on the intentional discrimination
has manifest rela-
practice
“a
employment
by
operation of the
is demonstrated
the
in question.”
tionship
employment
entirety, they
may
in its
make
system
also
432,
854.
91 S.Ct. at
U.S. at
Griggs, components
the
particular
claims
system
disparate impact.
have a
More-
Involving
Cases
B. Pattern and Practice
over,
plaintiffs
if
not
even
the
do
concen-
Discrimination
Mixed Claims of
components,
employer
trate on these
the
chal- may deny
discriminatory
by
in the instant case
its
plaintiffs
point-
intent
system
ing
specific, arguably
its
a
nondiscriminato-
lenge
employment
the DEA’s
challenge
ry, component
com-
as the cause of the observed
entirety
particular
also
and
Hence,
disparity.
of the
doing so,
either because
they
ponents
system.
of that
plaintiffs’ allegations or because of the em-
disparate
allege
pattern
practice
and
both a
defense,
ployer’s
pattern
and
focus
a
disparate im-
several
treatment claim and
may
practice
shift or
from
case
broaden
pact
has not hereto-
claims. This Circuit
disparate
analysis
treatment
to include
fully
parties’ respective
articulated
fore
employer’s liability
specific
issue of
disparate
pattern
practice
in a
and
burdens
employment
disparate
that have
practices
Sawyer,
case.
McKenzie
treatment
Cf.
effects.
(D.C.Cir.1982)(noting
F.2d
71 n. 7
“it
whether the
remains debatable
unequivocally
Supreme
Court has
As
holding
persua
that the
burden
Burdine
depending on
approaches
dictated different
plaintiff
with an individual
sion remains
the focus of a case is intentional
whether
applied to a class action suit
specific
should be
em-
discrimination or
effects of
treatment”).
alleging disparate
In under
ployment practices,
pat-
treatment of
our
task,
taking
account for
practice
are mindful
tern and
actions must
we
frequent
permutable
nature of these actions.
Supreme
reminders that
Court’s
subsequent
discussion delineates
regarding the
its statements
burdens
respective
plaintiffs’ and defendant’s
bur-
proof governing particular types
employ
case,
pattern
practice
dens in
discrimination cases should
ment
explains that the nature
these burdens
interpreted as “inflexible formulation[s]”
vary
if the
will
somewhat
(Teamsters, 431
U.S.
disparate im-
proof implicates
defendant’s
Douglas
(discussing McDonnell
pact analysis.
Green,
Corp. v.
(1973))
“necessarily
that are
practice case can
a
determining the burden that the de-
ways,
meet the
designed
must be
but
Teamsters,
satisfy
rebutting
plain-
must
by
plaintiffs.
fendant
proof offered
case,
prima
guided by
facie
we are
1867 n. 46.
tiffs’
fact
that
the
have not carried
words,
plaintiff
other
if a
the
satisfies
their ultimate
plaintiffs
burden or the
will
test,
Douglas four-prong
McDonnell
this
prevail without further evidence.
a
Absent
a
‘presumption
“creates
rebuttable
that the
clear
Supreme
indication from the
Court
employer unlawfully
against’
discriminated
that
depart
we should
from this “common
him.” United States Postal Service
(see
allocation of burden in a civil suit”
Aikens,
Board
Governors
Vuyаnich,
663),
P.Supp.
ap
the
1478, 1481,
103 S.Ct.
in the view, strategies. my there no by initially perceived that a suit doubt disparate treatment case
parties to abe a case of mixed
may expanded into disparate treatment (including both
claims into impact) or transformed disparate (i.e., single theory resting a new
case disparate treat- impact instead
disparate changes
ment). clear that these It is also virtue
may be initiated proofs or the defendant’s
allegations and However, under Albemarle
defense. prove not have to a defendant does
Griggs, necessity” of otherwise
the “business plain- practice absent employment
neutral concession) (or defendant’s
tiffs' discriminatory effects.
its unlawful
Conclusion opinion for majority its
I commend the case, analysis of this and for
exhaustive in a manner that benefits
clarifying the law Although alike. defendants my
I certain of express seen fit
views, generally I am accord with the holdings opin- majority
rationale and
ion. PEREZ,
Gloria Mendez vda. individu- de
ally and next friend of her minor
children, Glorimar, Sauhdi, Adelisa and Perez, Appellants,
Nirma COM-
FEDERAL COMMUNICATIONS (Two Cases) MISSION, Appellee. *51 79-1614,
Nos. 80-2208. Appeals, States Court
United Columbia Circuit.
District of 24, 1984.
Argued Jan. 26, 1984.
Decided June
notes
other
the hetero-
at 2742. We must therefore decide at the
geneity
pool
plaintiff
of the labor
that
de-
plaintiffs’
outset whether
lack of anecdotal
precluded any presumption
equal
fined
triggers
requirement
plain
evidence
qualifications.
present setting, by
In the
gross disparities
tiffs show
of treatment.
contrast, it would be irrational to assume Beyond
argues
this threshold issue DEA
unequal qualifications.
plaintiffs’
statistics do not show suffi
post-1972
cient actionable
discrimination at
presented
Since DEA has
no admissible
significance
sufficient levels of statistical
agents
likely
evidence
black
are more
support an
inference of discrimination.
year
than white
to lack a second
Thus we must also decide whether the Dis
requisite experience, plaintiffs’ failure to
properly
trict Court
found that
account for this variable does not dilute the
showing
had made a sufficient
of action
force of their
analysis;
statistical
in the
discrimination,
able
both
terms of the
language
statistician,
any
of the
absent
magnitude
disparities
of actionable
reason to conclude that the omitted factor
significance.
terms of the level of statistical
race,
correlates with
omission of
validity
variable will not affect the
i. The
lack
anecdo
effect of
race coefficient
regression
testimony
tal
Anecdotal
re
evidence.
Cole,
analysis.
supra,
D. Baldus
& J.
counting personal experiences of discrimi
273;
I,
Vuyanich
supra,
plays
important
nation
role in Title VII
litigation.
testimony may ‘[bring]
“Such
”
convincingly
Though any one of the above reasons
the cold numbers
to life.’
Valentino,
justified plaintiffs’
supra,
(quoting