19 F.3d 1459 (D.C. Cir. 1994), 92-5347, Hartman v. Duffey

Docket Nº:92-5347, 92-5325.
Citation:19 F.3d 1459
Party Name:Carolee Brady HARTMAN; All Other Plaintiffs, Approx. 50 Additional Plaintiffs, Plaintiffs-Appellants, v. Joseph DUFFEY, Director, United States Information Agency; All Other Defendants, One Additional Defendant, Defendants-Appellees. Carolee Brady HARTMAN; All Other Plaintiffs, Approx. 50 Additional Plaintiffs, Plaintiffs-Appellees, v. Joseph DUFFE
Case Date:April 05, 1994
Court:United States Courts of Appeals, Court of Appeals for the District of Columbia Circuit
 
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Page 1459

19 F.3d 1459 (D.C. Cir. 1994)

Carolee Brady HARTMAN; All Other Plaintiffs, Approx. 50

Additional Plaintiffs, Plaintiffs-Appellants,

v.

Joseph DUFFEY, Director, United States Information Agency;

All Other Defendants, One Additional Defendant,

Defendants-Appellees.

Carolee Brady HARTMAN; All Other Plaintiffs, Approx. 50

Additional Plaintiffs, Plaintiffs-Appellees,

v.

Joseph DUFFEY, Director, United States Information Agency;

All Other Defendants, One Additional Defendant,

Defendants-Appellants.

Nos. 92-5347, 92-5325.

United States Court of Appeals, District of Columbia Circuit

April 5, 1994

Argued Feb. 1, 1994.

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Douglas A. Wickham, Asst. U.S. Atty., argued the cause for appellant/cross-appellee. With him on the briefs were Eric Holder, Jr., U.S. Atty., John Oliver Birch, R. Craig Lawrence, Robert L. Shapiro and Daniel Van Horn, Asst. U.S. Attys. John D. Bates entered an appearance and Terri A. Zall, Sp. Asst. U.S. Atty.

Bruce A. Fredrickson argued the cause for appellee/cross-appellant. With him on the briefs was Susan L. Brackshaw.

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Before: WALD, HENDERSON, and RANDOLPH, Circuit Judges.

Opinion for the Court filed by Circuit Judge WALD.

Separate concurring opinion as to Part II-B. filed by Circuit Judge RANDOLPH with whom Circuit Judge HENDERSON concurs. [*]

WALD, Circuit Judge:

This is an interlocutory appeal from an order of the district court in a gender discrimination class action initiated in 1978 on behalf of women who unsuccessfully applied for civil service and foreign service positions at the United States Information Agency ("USIA" or "Agency"). In that order, the district court required the Agency to set aside thirty-nine foreign service positions for remedial allocation to women who had applied for foreign service officer positions at the USIA during the liability period but were ultimately denied employment. Hartman v. Gelb, 1 No. 77-2019 (D.D.C. July 9, 1992) reprinted in Joint Appendix ("J.A.") at 337. After fifteen years of proceedings including a finding of liability entered against the USIA in 1984, Hartman v. Wick, 600 F.Supp. 361 (D.D.C.1984), an order establishing the remedial framework in 1988, Hartman v. Wick, 678 F.Supp. 312 (D.D.C.1988), and the Agency's resulting expenditure of over $2 million to notify potential class members of available remedies, the USIA raises in an appeal for the first time the issue of whether the class certification back in 1978 was appropriate.

Since unfortunately we are unable to decide on the record before us that this suit is properly certified as a class action, we are compelled to remand the case to the district court to make the necessary findings on and to consider possible revisions to the original class certification. Cautiously deciding at this juncture only what we have to, we resist appellant's suggestion to review the merits of the district court's 1984 liability findings. Since a modified class certification could also moot any dispute about the number of remedial foreign service slots, we do not decide that issue either.

I. BACKGROUND

In March 1977, Luba Medina, a former Agency employee, brought an individual complaint under Title VII of the Civil Rights Act of 1964, as amended by the Equal Employment Opportunity Act of 1972, 42 U.S.C. Secs. 2000e-2000e-17, alleging that the Agency had failed to rehire her on the basis of her gender, in retaliation for her own prior charges of gender discrimination, and because of her husband's representation of minorities in Equal Employment Opportunity Commission ("EEOC") actions.

On November 25, 1978, Carolee Brady Hartman filed this civil suit as a class action on behalf of herself and all other women "who have made applications to work for and/or are currently employed by the United States Information Agency ... and who have been and continue to be adversely affected by the [Agency's sexually discriminatory] employment practices." J.A. at 1, 1-2. Specifically as to herself, Ms. Hartman alleged that she had interviewed for the position of writer/editor with the USIA's Horizon magazine, that the male interviewer "stated that [p]laintiff was very well qualified for the position," but "stated to [p]laintiff that he was looking for a male to fill the writer/editor position," and that after plaintiff's rejection the position remained open and the USIA continued to seek applicants. J.A. at 4.

In February 1978, Ms. Hartman moved for class certification pursuant to Rule 23(b)(2) & (c)(1) of the Federal Rules of Civil Procedure, J.A. at 20, and in April, 1978, the district court conditionally certified the class of "all women who have applied for employment with or are currently employed by the [USIA] and who have been or continue to be

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adversely affected by the [USIA's] discriminatory employment practices," J.A. at 48.

In late April, 1978, Toura Kem brought an individual Title VII action against the USIA alleging that she had been denied a permanent Agency position on account of her gender. Later that year, the district court permitted Ms. Medina and two Agency employees, Josefina Martinez and Rose Kobylinski, to intervene in the class action as named plaintiffs and finally consolidated the three actions of Ms. Hartman, Ms. Kem, and Ms. Medina. J.A. at 49, 53, 54.

The parties agreed to bifurcate the trial of the class claims into a liability and remedy stage. Cf. International Bhd. of Teamsters v. United States, 431 U.S. 324, 360-61, 97 S.Ct. 1843, 1867-68, 52 L.Ed.2d 396 (1977) (describing such bifurcation of trial). After a bench trial on the class liability issues, the district court modified the class to exclude women in clerical positions and entered a judgment for defendant on all counts because plaintiffs had failed to establish a prima facie case of gender discrimination. De Medina v. Reinhardt, 444 F.Supp. 573, 21 Fair Empl.Prac.Cas. (BNA) 75 (D.D.C.1978). After three of the named plaintiffs voluntarily dismissed their claims and after conducting a trial on the individual claims of Ms. Kobylinski and Ms. Medina, the district court further dismissed Ms. Medina's claim on the merits and Ms. Kobylinski's claim because she had failed to exhaust her administrative remedies. De Medina, Nos. 77-0360, 77-2019 & 78-0762 (D.D.C. June 15, 1981).

On appeal in 1982, we upheld the district court's rejection of the class promotion discrimination claim and reversed the dismissal of the class hiring discrimination claim because the district court's opinion "reflect[ed] a basic misperception of the relevancy and role of statistical evidence in the plaintiffs' prima facie showing." De Medina, 686 F.2d 997 (D.C.Cir.1982). In addition to ordering the reconsideration of the class hiring claim, we instructed the trial judge on remand to make specific findings on the class retaliation claim. Id. at 1011-12. We reversed the dismissal of Ms. Kobylinski's individual claim and affirmed the rejection of Ms. Medina's. Id. at 1012-15.

By stipulation of the parties, the trial court on remand reconsidered the case without further development of the record. Although denying the class retaliation claim, the court found, after reconsidering its earlier dismissal of the statistical evidence, that the Agency had discriminated against women in hiring for six occupation categories. Hartman v. Wick, 600 F.Supp. 361 (D.D.C.1984). The court also entered judgment in favor of Ms. Kobylinski's individual claim.

In 1988, the district court in a detailed opinion ruled on the framework for the relief to be afforded the plaintiff class. Hartman v. Wick, 678 F.Supp. 312 (D.D.C.1988). Unless the parties agreed on a different procedure, class members who had applied for a civil service position at the USIA would be given individualized Teamster hearings to assess appropriate relief. Id. at 333 (citing Teamsters, 431 U.S. at 372, 97 S.Ct. at 1873). 2 A class member who prevailed at her Teamsters hearing would be entitled to "full make-whole relief under Title VII," including back pay and appropriate reinstatement or front pay. Id. at 335-37.

In the case of foreign service officer hires at the Agency, the court further ruled that class members who had applied for foreign service jobs at the USIA would be permitted to compete for a designated number of such positions to be specially set aside by the Agency for class relief purposes. Id. at 338-40. The court ordered the USIA to prepare a rank-ordered list of the women who had unsuccessfully applied for foreign service officer positions during the period of liability. However, the court postponed decision on

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the final number of such reserved slots pending further briefing. On the basis of the liability finding in 1984, the court required the Agency to bear the costs of notifying potential class members about the relief. Finally, the court denied plaintiffs' request for any further prospective relief. Id. at 340-41.

Since 1988, more than 30,000 women have been contacted and more than 10,000 women are currently participating in the relief process, at a cost to the defendant of roughly $2 million. Reply Brief for Appellees at 19 n. 8 & 20 n. 9.

In July 1992, the court ordered the Agency to set aside thirty-nine foreign service positions over the next three years for women on the rank-ordered list of unsuccessful foreign service applicants. Hartman v. Gelb, No. 77-2019 (July 9, 1992), reprinted in J.A. at 337. It is this last order from which the Agency now appeals challenging not only the number of remedial foreign service positions, but, more basically, the district court's 1984 liability determination and the original 1978 class certification. Plaintiffs cross-appealed, arguing that a greater number...

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