678 F.Supp. 312 (D.D.C. 1988), Civ. A. 77-2019, Hartman v. Wick

Docket Nº:Civ. A. 77-2019
Citation:678 F.Supp. 312
Party Name:Hartman v. Wick
Case Date:January 19, 1988
Court:United States District Courts, District of Columbia
 
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Page 312

678 F.Supp. 312 (D.D.C. 1988)

Carolee Brady HARTMAN, et al., Plaintiffs,

v.

Charles Z. WICK, Defendant.

Civ. A. No. 77-2019.

United States District Court, District of Columbia.

Jan. 19, 1988

As Amended Jan. 29 and Feb. 16, 1988.

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Bruce A. Fredrickson, Susan L. Brackshaw, and Bonnie A. Suchman, Webster & Fredrickson, Washington, D.C., for plaintiffs.

Robert E.L. Eaton, Jr. and Stuart H. Newberger, Asst. U.S. Attys., Lorie J. Nierenberg and Richard H. Swan, Office of the Gen. Counsel, U.S. Information Agency (of counsel), on brief, Joseph E. DiGenova, U.S. Atty. and Royce C. Lamberth, Asst. U.S. Atty., for defendant.

Table of Contents

INTRODUCTION ____________________________________________________page 319

I. THE NEW LAW SET FORTH BY THE UNITED STATES COURT OF APPEALS FOR THE DISTRICT OF COLUMBIA IN PALMER V. SHULTZ MAY NOT BE APPLIED RETROACTIVELY IN THIS CASE .......319

II. THE OCCUPATIONAL CATEGORIES AT ISSUE IN THIS SUIT ....................................................320

A. The job categories in which the Court found discrimination have been reclassified........................... 320

B. Foreign Service Officer applicants are included in the plaintiff class unless they actually sought relief under the consent decree in Palmer v. Shultz ....................................................................................................... 321

C. Women who submitted multiple applications and were later hired for one position are eligible for inclusion in the plaintiff class ..................................................................................................................................... 324

D. The plaintiff class includes women who were denied a position that was allegedly filled by another woman .................................................................................................................................................................. 324

E. The plaintiff class includes non-resident aliens who applied for USIA jobs to be performed in the United States ......................................................................................................................................................... 324

III. TO BE A MEMBER OF THE PLAINTIFF CLASS, A WOMAN MUST HAVE APPLIED FOR ONE OF THE POSITIONS AT ISSUE IN THIS SUIT BETWEEN OCTOBER 8, 1974 AND NOVEMBER 16, 1984 ............ 325

A. The plaintiff class opens on October 8, 1974 ................................................................................... 325

B. The plaintiff class closes on November 16, 1984 .............................................................................. 328

IV. EXCEPT FOR FOREIGN SERVICE APPLICANTS, CLASS MEMBERS WHO WISH TO PARTICIPATE IN CLASS RELIEF ARE ENTITLED TO INDIVIDUALIZED DETERMINATIONS OF THEIR CLAIMS .............. 328

A. The large majority of class members has not been identified .............................................................. 328

B. Notice will be mailed to identified class members and, because of the large number of unidentified class members, notice by posting, publication, and memoranda will also be ordered. In addition, plaintiffs will be permitted to conduct limited discovery in order to identify additional class members who may have been encouraged to apply for the jobs at issue by word-of- mouth recruitment ...................................................... 329

C. The content of the notice must explain the basic facts about this suit, including the definition of the plaintiff class, the Court's finding of liability, the Court's remedial order, and what potential class members must show in order to be eligible for a determination of defendant's liability to each of them ................................................ 331

D. The proof-of-claim forms must ask plaintiffs to show that they applied for a job within one of the relevant job categories during the relevant time period and that they were rejected ..................................................... 332

E. The claims of class members who were not Foreign Service applicants will be determined through individual Teamster hearings unless the parties can agree on an alternative procedure ..................................... 333

F. The Court will determine whether Teamster hearings should be conducted by a United States Magistrate or by one or more Special Masters once class members have submitted proof-of-claim forms ....................... 334

G. Burden of proof at the Teamster hearings ......................................................................................... 335

V. REMEDIES FOR SUCCESSFUL INDIVIDUAL CLAIMANTS WHO

WERE NOT FOREIGN SERVICE APPLICANTS ....................................................................................... 335

A. Plaintiffs are entitled to back pay ...................................................................................................... 336

B. Plaintiffs who request employment with the Agency but cannot be hired immediately are eligible for front pay as well .................................................................................................................................................. 337

C. Class members were obligated to make reasonable efforts to mitigate damages, and the monetary awards must be reduced by the mitigating earnings ................................................................................................... 337

D. Plaintiffs who request positions with the Agency are eligible for hiring priorities and retroactive promotions .................................................................................................................................................................... 338

VI. RELIEF FOR FOREIGN SERVICE APPLICANTS TO THE UNITED

STATES INFORMATION AGENCY ........................................................................................................... 338

A. The Court will model the relief for Foreign Service applicants to the United States Information Agency on the consent decree in Palmer v. Shultz .......................................................................................................... 338

VII. THE COURT WILL NOT ORDER PROSPECTIVE RELIEF ............................................................... 340

VIII. THE COURT WILL RESERVE JUDGMENT ON PLAINTIFFS' REQUEST FOR ATTORNEY'S FEES ................................................................................................................................................................................ 341

IX. CONCLUSION ............................................................................................................................................... 341

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INTRODUCTION

CHARLES R. RICHEY, District Judge.

By Order of April 19, 1978, the Court conditionally certified this case as a class action. That class consisted of "all women who have applied for employment with or are currently employed by the United States Information Agency and who have been or continue to be adversely affected by the discriminatory employment practices of the defendant." 1 On November 16, 1984, this Court found that defendant had "discriminated against women as a class with regard to hiring" in six occupational categories at the defendant agency. Hartman v. Wick, 600 F.Supp. 361, 375 (D.D.C.1984). That Opinion details the background of this long-lived litigation, as does De Medina v. Reinhardt, 686 F.2d 997, 1000-01 (D.C.Cir. 1982), an appeal of an earlier decision in this case.

The Court's 1984 Opinion and Order dealt solely with the question of liability. From January 12, 1987, through January 14, 1987, the Court held a trial to determine appropriate remedies. At trial, and in their post-trial submissions, the parties clarified the areas of agreement and disagreement about the proper scope and contour of remedies in this case. The Court has carefully considered the testimony, the exhibits, the pre-trial and post-trial briefs of both parties, and the underlying law. On the basis of the record and the law, the Court has made the following determinations. 2

I. THE NEW LAW SET FORTH BY THE UNITED STATES COURT OF APPEALS FOR THE DISTRICT OF COLUMBIA IN PALMER V. SHULTZ MAY NOT BE APPLIED RETROACTIVELY IN THIS CASE.

The Court must first note that the Court of Appeals for this Circuit has recently wrought a significant change in the law governing the use of statistics in a discrimination case. In Palmer v. Shultz, 815 F.2d 84 (D.C.Cir. 1987), the D.C. Circuit distinguished between "one-tailed" and "two-tailed" statistical analyses. 3 Ending its earlier silence on this issue, the Circuit stated that "although we by no means intend entirely to foreclose the use of one-tailed tests, we think that generally two-tailed tests are more appropriate in Title VII cases." Id. at 95.

If the Palmer decision were applied retroactively to the case at bar, the Court's 1984 finding of liability might be questioned, as it was based on a "one-tailed" statistical test that might no longer be deemed appropriate in this type of suit. See Hartman v. Wick, 600 F.Supp. 361, 369, 375 (D.D.C.1984). Consequently, the Court must consider whether Palmer's strong suggestion that courts should employ a "two-tailed" analysis should be applied retroactively in this case.

In Chevron Oil Co. v. Huson, 404 U.S. 97, 106-07, 92 S.Ct. 349...

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