Mary P. VALENTINO, individually and on behalf of all other persons similarly situated, Appellant, v. UNITED STATES POSTAL SERVICE.
No. 81-1202
United States Court of Appeals, District of Columbia Circuit.
Argued Dec. 3, 1981. Decided March 26, 1982.
Statement on Rehearing May 18, 1982.
674 F.2d 56
Appellee correctly notes that appellant‘s “argument was hinted at in the course of a brief paragraph in a cover sheet attached to Western‘s petition to deny, never to be addressed again either in the body of the petition to deny or in any other pleading subsequently filed by Western. And although the Commission took note in its initial order that ‘KOCM does not claim a de facto reallocation’ ([79 F.C.C.2d at 951] J.A. 113), KOCM did not address that finding in its petition for reconsideration.” Appellee‘s brief at 19-20.
Because we find that appellant has never properly raised a claim of “de facto reallocation” before the Commission, and because we can discern no other legitimate claim in appellant‘s alternative ground for reversal, we affirm the decision of the Commission on this point.
IV. CONCLUSION
For the reasons set forth above, we affirm in part and reverse in part the Orders of the Commission here under review. After a review of the record, we find that the Commission should have granted a hearing to Appellant KOCM pursuant to section 316 of the Communications Act,
So ordered.
William H. Briggs, Jr., Asst. U. S. Atty., Washington, D. C., with whom Charles F. C. Ruff, U. S. Atty. at the time the briefs were filed, Royce C. Lamberth, and Kenneth M. Raisler, Asst. U. S. Attys., and David G. Karro, Atty., U. S. Postal Service, Washington, D. C., were on the brief, for appellee.
Before TAMM, WALD and GINSBURG, Circuit Judges.
Opinion for the Court filed by Circuit Judge GINSBURG.
GINSBURG, Circuit Judge:
This action, brought under Title VII of the Civil Rights Act of 1964, as amended,
Following a two-week non-jury trial, at which twenty-nine witnesses were heard and hundreds of pages of exhibits were introduced, both sides submitted detailed proposed findings of fact and conclusions of law. The district court substantially accepted, with some modification, USPS‘s proposed findings and conclusions2 and
As to Valentino‘s individual claim, we find ample record support for the district court‘s conclusions that (1) Valentino established a prima facie case, (2) USPS produced adequate evidence of a legitimate, nondiscriminatory reason for its action—it explained that those involved in the selection process fairly and rationally judged Valentino a well-qualified, but not the best qualified applicant, (3) Valentino failed to carry the ultimate persuasion burden the law placed upon her to demonstrate that the reason USPS proffered was a pretext cloaking sex discrimination. See Texas Department of Community Affairs v. Burdine, 450 U.S. 248, 101 S.Ct. 1089, 67 L.Ed.2d 207 (1981).
Regarding the class claim, both sides tendered statistical evidence heavier in volume than in persuasive content. Valentino‘s presentation showed a conceded and familiar pattern—USPS employed a distinctly smaller percentage of women in top posts than in lower level jobs. The higher level promotion positions at issue, however, covered a wide range, including inter alia, confidential secretaries, lawyers, engineers, business managers. Valentino‘s data did not offer a sufficiently refined comparison of male and female employees of similar qualifications, her statistics did not hone in on the wide variety of minimum objective qualifications required of applicants for the diverse promotion positions filled at USPS Headquarters during the relevant time period. See Hazelwood School District v. United States, 433 U.S. 299, 308 n.13, 97 S.Ct. 2736, 2742 n.13, 53 L.Ed.2d 768 (1977) (when special qualifications are required to fill professional positions, comparative statistics should take into account those special qualifications); Wilkins v. University of Houston, 654 F.2d 388, 408-10 (5th Cir. 1981) (plaintiff must demonstrate availability of qualified class members for particular professional and administrative occupations); Pack v. Energy Research & Development Administration, 566 F.2d 1111, 1113 (9th Cir. 1977). Moreover, her data did not show marked differences in the advancement rate of men and women after January 28, 1976, the effective date of the promotion system operative for the class. See 511 F.Supp. at 940; J.A. 207-09. Although we do not share the district court‘s view of the force of USPS‘s statistical proof, we disregard as surplusage the findings and conclusions addressed to that data. It sufficed for the district court to determine correctly, as it did, that Valentino failed to prove the claim her complaint stated on behalf of the class.
I. THE INDIVIDUAL CLAIM
A. Facts
Mary P. Valentino has had a long career in the personnel field in government service. Her USPS employment, however, has been relatively short-term. She was initially engaged by the Post Office Department in October 1970 to work as an Employment Specialist (Women). Prior to that assignment, she held the post of Director of Personnel at the Equal Employment Opportunity Commission. The Post Office position increased her annual salary by approximately $2,000. She remained in this position only seven months. The functions of the Post Office Department were being transferred to USPS during this period and Valentino was among a group of employees eligible to retire early with a six-month pay bonus. She opted for early retirement and accepted a bonus of approximately $13,600.
Nine months later, in February 1972, Valentino re-entered federal service first at the Food and Drug Administration and, in December 1972, at the Consumer Product Safety Commission (CPSC), where she became Director of Personnel. In late 1973
In sum, until 1976, it appears that Valentino‘s own Post Office and USPS employment experience entailed no gender-based unfavorable treatment, and we do not understand Valentino to contend otherwise.3 Rather, her individual claim stems from a 1976 efficiency-oriented realignment of the E&LR Group, which eliminated the Office of Career Planning, and her unsuccessful bids for promotion to two newly-created posts.
In September 1975, planning commenced for a realignment of the USPS Headquarters E&LR Group. The objective was to streamline the organization and eliminate functional duplication. All high-level officers, including Valentino, participated in the realignment planning effort. The realignment was announced in April 1976, effective June 4, 1976; it entailed the elimination of approximately 140 positions, including Valentino‘s. Several new posts were created (although the retrenchment left approximately 100 fewer positions), and Valentino unsuccessfully applied for two of them: Director, Office of Human Resources (OHR); and Director, Office of Employee Services (OES). Both posts carried ranks higher than the Office of Career Planning position Valentino then occupied.4 In her administrative charge and in the district court Valentino challenged as sex discriminatory USPS‘s failure to select her for the OHR as well as the OES directorship. On appeal, she has confined her individual, discriminatory failure to promote argument to the OES post.
In addition to her Title VII sex discrimination charge, Valentino filed an ultimately unsuccessful administrative charge with the Civil Service Commission in which she attacked the realignment because it was not handled as a reduction in force (RIF), to which the Veterans Preference Act applies. See
Fifty-three persons applied for the OES directorship. Valentino was among the six top candidates interviewed for the post. However, she was not among the three persons the committee referred to the official who made the final selection. Valentino introduced witness testimony tending to show, albeit with less than crystal clarity, that three committee members initially favored forwarding her name to the selecting official. However, the same witnesses also testified that the recommended list, which did not include Valentino‘s name, represented the ultimate consensus of the committee. See J.A. 670-71, 680, 844-46.
The person promoted to the OES position, Elmer Weems, previously held a USPS rank and received a salary comparable to Valentino‘s. He had an unbroken work record at USPS since 1970. During that period, he held several management posts and had acquired extensive field experience.
Some weeks after the selection of persons other than Valentino for the OHR and OES directorships, the Women‘s Program, originally placed in the realignment under OHR, was transferred to OES. See J.A. 717, 841-42. Valentino accepted a lateral reassignment in August 1976. Although she asserted in the district court that the reassignment was a discriminatory “downgrade,” see 511 F.Supp. at 926, 947, she has not pressed that contention on appeal.6 Valentino left the USPS in October 1978 for a higher salaried position with the Community Services Administration.
B. Legal Analysis
To establish a prima facie case of discriminatory refusal to promote, a plaintiff need only show that she belongs to a protected group, that she was qualified for and applied for a promotion, that she was considered for and denied the promotion, and that other employees of similar qualifications who were not members of the protected group were indeed promoted at the time the plaintiff‘s request for promotion was denied. Bundy v. Jackson, 641 F.2d 934, 951 (D.C. Cir. 1981). The burden is “not onerous,” see Texas Department of Community Affairs v. Burdine, supra, 450 U.S. at 253, 101 S.Ct. at 1093-1094, and the district court, departing from USPS‘s position on this point, properly determined that Valentino crossed the first threshold.
To meet a prima facie case, a defendant must present with clarity and reasonable specificity a legitimate, nondiscriminatory reason for the action it took. Id. at 254-56, 258, 101 S.Ct. at 1094-1095, 1096. To satisfy this “intermediate burden,” USPS was not required to convince the court that it in fact chose the better applicant. Id. at 258-59, 101 S.Ct. at 1096-1097. However, it was obliged to produce evidence “which would allow the trier of fact rationally to conclude that the employment decision had not been motivated by discriminatory animus.” Id. at 257, 101 S.Ct. at 1095-1096; see St. Peter v. Secretary of the Army, 659 F.2d 1133, 1139 (D.C.Cir.1981) (Mikva, J., concurring in the result).
In view of USPS‘s presentation of a cogent, nondiscriminatory explanation for not selecting Valentino for the OES post—her limited experience in postal service operations—it was incumbent upon Valentino to persuade the trial court that “a discriminatory reason more likely motivated [USPS]” or that “[USPS‘s] proffered explanation is unworthy of credence.” Texas Department of Community Affairs v. Burdine, supra, 450 U.S. at 256, 101 S.Ct. at 1095. We discern no “clear error” in the district court‘s determination that Valentino failed to carry this ultimate burden of establishing intentional sex discrimination.
In her briefs on appeal, Valentino emphasized the transfer of the Women‘s Program she once supervised from OHR to OES shortly after both director posts were filled. See J.A. 717, 841-42. She charged deliberate manipulation of the initial job descriptions to block her advancement. Valentino reasons that USPS officials knew her chances for the OHR post were limited and must have considered her a front runner for the OES post if it encompassed responsibility for the Women‘s Program. The district court considered but was not persuaded by this argument. See 511 F.Supp. at 925 n.5. We need only point out that the inferences Valentino draws from the change in the Women‘s Program location, if plausible, are hardly compelled by the evidence.7
The district court, in sum, could properly conclude that USPS‘s explanation for failing to select Valentino for the OES directorship was worthy of credence and was not a pretext to cover up sex discrimination. We must therefore decline to disturb the district court‘s decision that Valentino ultimately failed to prove she was the victim of gender-based animus on the part of USPS.
II. THE CLASS CLAIM
After rejecting Valentino‘s initial descriptions of the proposed class as overbroad, 511 F.Supp. at 926-27, the district court certified her representation of
all females who since June 16, 1976, have been employed or are now employed by the United States Postal Service (USPS) Headquarters in the Washington, D. C., statistical metropolitan area in the positions compensated according to USPS pay scales at level PES-17 or higher, and who have been accorded disparate treatment because they have been denied advancement on the basis of their sex, excluding, however, any such females who are union members or who participated in the personnel decisions resulting in plaintiff Mary P. Valentino‘s individual claims. 511 F.Supp. at 919.8
In its analysis the district court prescribed the applicable time frame for proof of the class claim, described the legal framework for adjudicating the claim, and appraised both the statistical evidence submitted and the testimony of sev-
A. The Time Dispute
The trial court ruled untimely Valentino‘s claims of sex discrimination between June 1974 and January 1976. 511 F.Supp. at 949-51. We agree and need not rehearse in detail the reasons supporting that ruling. Relief under Title VII is ordinarily dependent upon the filing of a timely administrative charge. United Airlines, Inc. v. Evans, 431 U.S. 553, 558, 97 S.Ct. 1885, 1889, 52 L.Ed.2d 571 (1977); Alexander v. Gardner-Denver Co., 415 U.S. 36, 47, 94 S.Ct. 1011, 1019, 39 L.Ed.2d 147 (1974); see Zipes v. Trans World Airlines, Inc., 455 U.S. 385, 393, 102 S.Ct. 1127, 1132, 71 L.Ed.2d 234 (1982) (timely charge filing requirement is not a jurisdictional prerequisite to suit in district court; it operates “like a statute of limitations, [which] is subject to waiver, estoppel, and equitable tolling“). Valentino, subject to the requirement that she bring a discrimination claim to the attention of her agency‘s Equal Employment Opportunity Counselor within 30 days of the alleged violation,
Valentino would reach back to June 1974 as the starting place for proof of her class claim. To avoid the time bar, she invokes the “continuing violation” theory. See Evans, 431 U.S. at 558, 97 S.Ct. at 1889; Milton v. Weinberger, 645 F.2d 1070, 1074-77 (D.C.Cir.1981); Laffey v. Northwest Airlines, Inc., 567 F.2d 429, 473 (D.C.Cir.1976), cert. denied, 434 U.S. 1086, 98 S.Ct. 1281, 55 L.Ed.2d 792 (1978). To establish a continuing violation, however, Valentino would have to show “a series of related acts, one or more of which falls within the limitations period, or the maintenance of a discriminatory system both before and during the [limitations] period.” B. Schlei & P. Grossman, Employment Discrimination Law 232 (Supp.1979). She is in no position to do so. As we earlier observed, see supra p. 63, USPS inaugurated a new promotion system, the EVS, in January 1976. The district court considered the operative features of the new system and fairly concluded that “promotion claims which may have arisen in 1974 and 1975 involved practices which ceased” upon implementation of the EVS. 511 F.Supp. at 950.10
Moreover, in view of her own pre-1976 employment history with USPS, see supra pp. 61-62, Valentino is a questionable champion of those who may have encountered sex-based discrimination prior to the advent of the EVS.
Valentino has not successfully identified any feature of the EVS that projects into 1976 and beyond a specific past discriminatory device or practice. See Evans, 431 U.S. at 558, 97 S.Ct. at 1889 (critical question is not whether past practices have current consequences, but whether “any present violation exists“) (emphasis in original). The position advertising requirement of the EVS has made women aware of promotion opportunities, 511 F.Supp. at 933, promotion application screening committees under the EVS are composed with a view toward inclusion of women and minority groups members, id. at 921-22, and Valenti-
In sum, the district court correctly determined that Valentino was unable to identify a continuing pattern or scheme of the kind that would justify avoidance of the general applicable Title VII time frame.11
B. The Character of the Class and the Legal Framework for the Representative‘s Disparate Treatment Case
Position titles in the sector of USPS to which Valentino‘s class claim relates include national medical director, mail classification specialist, confidential secretary, real estate specialist, electronic engineer, psychologist, computer systems analyst, accountant, editor, principal economist, occupational safety and health specialist, senior attorney, philatelic program specialist, mechanical engineer, architect, labor relations executive, market specialist, news information officer, consumers affairs associate, government relations representative, and photo-journalist. J.A. 374-512. In view of this far-ranging diversity of professional and administrative occupations, and the distinct qualifications necessary for entry and advancement in each occupational category, Valentino‘s burden to show that USPS promotion decisions were based on gender—rather than on factors other than the promotion-seeker‘s sex—was especially difficult to meet.12
The evidence she presented failed to take into account mini-
“[A]ny Title VII plaintiff must carry the initial burden of offering evidence adequate to create an inference that an employment decision was based on a discriminatory criterion illegal under the Act.” International Brotherhood of Teamsters v. United States, 431 U.S. 324, 358, 97 S.Ct. 1843, 1866, 52 L.Ed.2d 396 (1977). Because Valentino alleged systemwide discrimination,
[she] ultimately had to prove more than the mere occurrence of isolated or “accidental” or sporadic discriminatory acts. [She] had to establish by a preponderance of the evidence that [sex] discrimination was the [employer‘s] standard operating procedure—the regular rather than the unusual practice.
Id. at 336, 97 S.Ct. at 1855 (footnote omitted). Moreover, because her case concerned high level professional, administrative, and managerial positions rather than jobs involving skills “many persons possess or can fairly readily acquire,” she could not succeed simply by submitting proof that might suffice where entry level or blue collar promotion posts are at stake. See Hazelwood, 433 U.S. at 308 n.13, 97 S.Ct. at 2742 n.13.14
To a large degree, the law of equal employment opportunity has developed in a blue collar context. Case law fashioned to deal with the problems of providing equal employment opportunity for employees who work with their hands rather than with people, paper, or ideas cannot be applied without alteration or adjustment to employment practices at the white collar and professional levels. Waintroob, supra, 21 Wm. & Mary L.Rev. at 46.
We set out above, quoting from Bundy v. Jackson, the character of proof sufficient to establish a prima facie case of discriminatory refusal to promote an individual. See supra p. 63. The Bundy prescription is an adjustment of the formula established for discriminatory refusal to hire an individual in McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802, 93 S.Ct. 1817, 1824, 36 L.Ed.2d 668 (1973).15 McDonnell Douglas recognized that “Congress did not intend by Title VII ... to guarantee a job to every person regardless of qualifications.” Id. at 800, 93 S.Ct. at 1823 (quoting Griggs v. Duke Power Co., 401 U.S. 424, 430, 91 S.Ct. 849, 853, 28 L.Ed.2d 158 (1971)). Hence the Supreme Court identified as an essential ingredient of the plaintiff‘s prima facie case a showing that the job seeker met minimum qualifications for the position in question.
Qualifications also figure importantly in the representative‘s threshold case on behalf of a class when professional and management positions are at issue. “When special qualifications are required to fill partic-
In Title VII class actions, statistical proof is a prominent part of the prima facie case. Indeed, such proof, when it is compelling, may even suffice to carry the class over the threshold. Teamsters, 431 U.S. at 339, 97 S.Ct. at 1856. But statistics “come in infinite variety,” and “their usefulness depends on all of the surrounding facts and circumstances.” Id. at 340, 97 S.Ct. at 1856-1857; Hazelwood, 433 U.S. at 312, 97 S.Ct. at 2744. When the job qualifications involved are ones that relatively few possess or can acquire, statistical presentations that fail to focus on those qualifications will not have large probative value. See Hazelwood, 433 U.S. at 308 n.13, 97 S.Ct. at 2742 n.13; Ste. Marie v. Eastern Railroad Association, 650 F.2d 395, 400-01 (2d Cir. 1981).17
“[N]ot every conceivable factor relevant to a [high level] promotion decision” must be considered in the statistical data presented initially by a plaintiff, but “the minimum objective qualifications necessary for one to be eligible for promotion must be considered.” Davis v. Califano, 613 F.2d 957, 964 (D.C.Cir.1980) (emphasis in original). The burden of comparing appropriate groups in terms of minimum objective qualifications, onerous here because of the disparate occupational categories involved, is far more tractable when all members of the class are professional, administrative or technical employees with generally similar job skills and seek advancement to positions involving those same skills. See Trout v. Hidalgo, 517 F.Supp. 873, 883 (D.D.C.1981).18
Generally, as part of their prima facie case, class action plaintiffs offer a combination of statistical proof and individual testimony of special instances of discrimination. Even when the statistical proof is so compelling that it might, in itself, satisfy the plaintiff‘s initial burden, the prima facie case is bolstered and the court‘s evaluation is aided by testimony recounting personal experiences of class members. Such testimony may “[bring] the cold numbers convincingly to life.” Teamsters, 431 U.S. at 338-39, 97 S.Ct. at 1855-1856 (statistics bolstered by testimony of over 40 specific instances of discrimination); see Hazelwood, 433 U.S. at 303, 305, 97 S.Ct. at 2739, 2740 (prominence of specific instances in race discrimination “pattern and prac-
Valentino‘s case on behalf of the class included both statistical presentations and individual testimony. The district court determined that the quality of both modes of proof fell below the threshold necessary to establish a prima facie case. We agree, but add this cautionary note. Because the fate of disparate treatment claims is heavily dependent on the setting, facts, and circumstances of the particular case, decisions in such cases “have limited precedential value.” Ste. Marie, 650 F.2d at 397. “[I]t is neither practical nor useful to write appellate opinions dealing in detail with every facet of each case.” Id. Accordingly, we do not “discuss every argument made by the parties,” id., or retread, step by step, the territory covered in the district court‘s findings and conclusions. Instead, we confine our discussion to the principal infirmities in the quality of the proof presented to and described at length by the district court.
C. The Statistical Evidence
Valentino presented three principal categories of statistical evidence: exhibits showing that as grade level increases, the percentage of women in the USPS work
1. Grade level and grade increase statistics
Valentino presented a series of exhibits19 which “generally repeat the same theme: in USPS Headquarters at the 17 and above levels, there are a larger percentage of women in the lower levels than in the upper levels.” 511 F.Supp. at 941. The exhibits convincingly demonstrated that USPS did not fill top jobs “random fashion,” but Valentino does not contend it should. This statistical presentation would be meaningful only if, in the absence of any sex bias on the part of USPS, one would expect to find the same distribution of men and women at each level, 17 and above. Such an expectation is hardly realistic given a national work force in which “the majority of secretaries are women [and] the majority of lawyers and engineers are men.” Id. at 941; see infra note 22; J.A. 617-20. In view of the
Valentino did factor years of education into some of her grade level exhibits. J.A. 149-69. The district court properly evaluated those exhibits as “of little if any value.” The educational data were manifestly inaccurate. Moreover, the exhibits were characteristic of the problem that pervades Valentino‘s proof. They did not group employees by job category, nor did they take into account type of education or experience. 511 F.Supp. at 943.
Valentino‘s grade increase exhibits attempted to compare promotions of men and women at USPS Headquarters, but again the comparisons were between “men, in general [and] women, in general.” Id. at 939. The exhibits provide no basis for comparing men and women similarly educated and equipped to pursue the same occupations. Moreover, the grade increase statistics failed to show any pattern operating to the disadvantage of women; they did not demonstrate that women received grade increases less often than men as regular occurrence.20
2. Regression Analyses
Multiple regression analysis is a statistical method for making “quantitative estimates of the effects of different factors on some variable of interest.” Fisher, Multiple Regression in Legal Proceedings, 80 Colum. L.Rev. 702, 702 (1980). The regression technique has come into vogue in employment discrimination cases as a means of estimating the discrete influence factors such as sex, experience, and education have had on determining salary level. See, e.g., Finkelstein, The Judicial Reception of Multiple Regression Studies in Race and Sex Discrimination Cases, 80 Colum.L.Rev. 737 (1980). Valentino‘s regression analyses attempted to estimate how much influence sex, length of government service, and years of education had on the salaries of USPS employees.21 Her analyses might have been impressive were this a case in which the women and men in the employer‘s work force held similar jobs. See Trout, 517 F.Supp. at 883 (“all members of the class [were] professional technical employees with generally similar job skills“). But Valentino utterly failed to control for type of education and job classification, see Fisher, supra, 80 Colum.L.Rev. at 721 n.32. The array of positions at issue and the difference in the availability of men and women in the nation and at USPS for the varied high level professional and administrative positions filled at Headquarters stripped her analyses of the significance she
When it is clear that qualification, e.g., as an economist, engineer, lawyer, computer expert, statistician, accountant, business manager, secretary, is a prime factor in the selection process, a Title VII plaintiff cannot shy away from that factor in developing her prima facie case.23 In the setting we have here it would be irrational to assume “equal qualifications” to fill engineering or secretarial vacancies among persons educated the same number of years24 and employed by the government for the same length of time.25 Because Valentino‘s regression model ignores information central to understanding the causal relationships at issue,26 the district court could not
D. Individual Testimony
Valentino presented testimony of five class members. Each testified to having been denied a promotion and to her belief that her sex was the operative reason. The district court characterized this testimony as “conclusory” and, in any event, insufficient “to show that sex discrimination is the ‘standard operating procedure’ of the USPS Headquarters or of the Essential Vacancy System.” 511 F.Supp. at 932.
Four of the five witnesses Valentino presented had started with the USPS as clerical or blue collar workers and had advanced to professional positions. One complained of an unsuccessful bid for a position in the Northeastern Region. This case, however, is confined to employment practices at USPS Headquarters. Two asserted that gender discrimination was responsible for rejection of their competing applications for a Marketing Specialist position. Whether their claims were well-founded depended on their credibility versus the credibility of the selecting officer. The district court credited the selecting officer‘s testimony, 511 F.Supp. at 928, and we are in no position to reject that evaluation as “clearly erroneous.” See
A fourth witness said the official who evaluated her performance was motivated by a general bias against women, but the woman who chaired the review committee for the promotion in question gave a different explanation. She testified that the low committee rating was based on the interview and on the applicant‘s unimaginative approach to problem solving. The fifth witness’ testimony was similarly countered by another woman review committee head. In both cases, the district court credited the women who chaired the review committees. 511 F.Supp. at 930-32.
Finally, Valentino introduced evidence concerning the efforts of an official to block the promotions of two class members. Both achieved the promotions and neither testified that she considered herself the victim of sex discrimination.
In rebuttal, USPS called three women who occupied high level posts and had served on or chaired several review committees. They testified to the advancement opportunities they and other women had been afforded through USPS education and training programs. 511 F.Supp. at 930-33.28
Our review of the individual anecdotal testimony fully accords with the district court‘s evaluation. The testimony falls far short of indicating a systematic policy of gender-based discrimination at USPS Headquarters.29
E. A Note in Summation
We have indicated some of the shoals in the way of plaintiffs who would prove discrimination against a class of employees seeking access or promotion to diverse, highly-skilled positions. Indeed, the breakdown of highly specialized workplaces into occupational categories for the purpose of examining the treatment of similarly qualified employees may yield numbers too small to conduct certain types of statistical analyses relied upon to show discrimination in workplaces less specialized. See supra p. 68; Wilkins, 654 F.2d at 409 n.37. Nonetheless, small numbers are not per se useless, especially if the disparity shown is egregious.30 See D. Baldus & J. Cole, su-
Statistics are not the only way to show discrimination:
The great debates concerning the nature and use of statistical proof in employment discrimination cases should not obscure the fact that nonstatistical proof also plays an important role in the determination of the prima facie case in many class actions, particularly where ... the statistical sample is small or the disparity not egregious.
B. Schlei & P. Grossman, supra, 1976 main text at 1193. When the capability of statistics to show discrimination is limited, see, e.g., id. at 1190, 1979 Supp. at 329-30, plaintiffs can press into better service nonstatistical proof of disparate treatment. See supra pp. 68-69; F. Morris, Current Trends in the Use (and Misuse) of Statistics in Employment Discrimination Litigation 49 (1977).
In this case, the combination of unrefined statistics and thin proof of individual instances of discrimination leaves the adjudicator without any basis for concluding that gender impeded Valentino and the class she would represent from moving into the highly skilled, diverse positions in the upper ranks at USPS Headquarters.31 If
The district court considered it appropriate to regress salary on grade level in a suit alleging discrimination in promotion. We disagree. Grade level, in a case such as this one, is an “inappropriate variable.” See Finkelstein, supra, 80 Colum.L.Rev. at 738-42. Absent clear, affirmative evidence that promotions were made in accordance with neutral, objective standards consistently applied, there is no assurance that level or rank is an appropriate explanatory variable, untainted by discrimination. Id. at 742.
Finally, the cohort analysis, which included several groups of less than ten people, had many of the weaknesses cogently identified in Trout, 517 F.Supp. at 884-86.
CONCLUSION
Our review of the record and arguments in this case persuades us that the district court correctly concluded that USPS presented a legitimate, nondiscriminatory reason, unrebutted by Valentino, for not selecting Valentino for the OES post, and that Valentino‘s unrefined statistics coupled with her nonstatistical evidence failed to establish a prima facie case of discrimination against the certified class. Accordingly, the judgment of the district court is Affirmed.
Statement On Rehearing
WALD, Circuit Judge.
I am voting to deny rehearing and concurred in this opinion originally, on the premise that a prima facie case of sex-based employment discrimination must provide a reasonable basis for inferring that similarly qualified men and women are treated dif-
This is a case of first impression in this circuit. It questions whether the Privacy
Notes
We are not unaware that suits alleging racial or ethnic discrimination are often by their very nature class suits, involving class-wide wrongs. Common questions of law or fact are typically present. But careful attention to the requirements of Fed.Rule Civ. Proc. 23 remains nonetheless indispensable. The mere fact that a complaint alleges racial or ethnic discrimination does not in itself ensure that the party who has brought the lawsuit will be an adequate representative of those who may have been the real victims of that discrimination.
Cf. Wilkins, 654 F.2d at 409 n.37 (“[W]hile we do not decide the question, it may be that claims of [discrimination] with respect to ... positions requiring diverse and specialized qualifications relating to education and work experience simply are inappropriate claims for class actions that rely on statistical proof.“).
We note that class certification ordered at the initial stage of litigation may be withdrawn, altered or amended when the merits of the case unfold. See