686 F.2d 997 (D.C. Cir. 1982), 81-1909, De Medina v. Reinhardt

Docket Nº:81-1909 to 81-1911.
Citation:686 F.2d 997
Party Name:Luba S. Kowalyszyn De MEDINA, Appellant, v. John E. REINHARDT, Director, United States International Communication Agency, et al. Carolee Brady HARTMAN, Individually and on Behalf of All Other Persons Similarly Situated, et al. Rose Kobylinski and Luba Medina, Appellants, v. John REINHARDT, Director United States International Communication Agency.
Case Date:August 27, 1982
Court:United States Courts of Appeals, Court of Appeals for the District of Columbia Circuit

Page 997

686 F.2d 997 (D.C. Cir. 1982)

Luba S. Kowalyszyn De MEDINA, Appellant,


John E. REINHARDT, Director, United States International

Communication Agency, et al.

Carolee Brady HARTMAN, Individually and on Behalf of All

Other Persons Similarly Situated, et al. Rose

Kobylinski and Luba Medina, Appellants,


John REINHARDT, Director United States International

Communication Agency.

Toura KEM, Luba Medina and Rose Kobylinski, Appellants,


John REINHARDT, Director United States International

Communication Agency.

Nos. 81-1909 to 81-1911.

United States Court of Appeals, District of Columbia Circuit

August 27, 1982

Page 998

[Copyrighted Material Omitted]

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[Copyrighted Material Omitted]

Argued March 25, 1982.

As Amended .

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Appeals from the United States District Court for the District of Columbia (D.C. Civil Action Nos. 77-00360, 77-02019 and 78-00762).

Bruce A. Fredrickson, Washington, D. C., for appellants.

Robert E. L. Eaton, Jr., Asst. U. S. Atty., with whom Charles F. C. Ruff, U. S. Atty., at the time the brief was filed, Royce C. Lamberth and Kenneth M. Raisler, Asst. U. S. Attys., Washington, D. C., were on the brief, for appellees.

Before WRIGHT and WALD, Circuit Judges and ANTHONY J. CELEBREZZE, [*] Senior Circuit Judge of the United States Court of Appeals for the Sixth Circuit.

Opinion for the Court filed by Circuit Judge WALD.

Opinion concurring in part and dissenting in part filed by Senior Circuit Judge CELEBREZZE.

WALD, Circuit Judge:

These appeals contest the district court's dismissal of consolidated individual and class sex discrimination claims against the Director of the United States International Communication Agency ("ICA" or "Agency"), formerly the United States Information Agency. Appellants contend that the district court (1) evaluated under inappropriate legal standards the statistical and testimonial evidence of a pattern and practice of discrimination in hiring, (2) failed to make required fact findings on the class promotion discrimination and retaliation claims, (3) improperly dismissed an individual claim for failure to exhaust administrative remedies, and (4) misapplied the requirements for a prima facie showing of discrimination to another individual claim. We find merit in certain of appellants' objections and therefore remand the class claims and the individual claim of Rose Kobylinski for further consideration. We affirm, however, the district court's dismissal of Luba Medina's individual claim.

I. Background

In March 1977, Luba Medina, a former Agency employee, filed an individual claim for damages and declaratory and injunctive relief under Title VII of the Civil Rights Act of 1964, as amended by the Equal Employment Opportunity Act of 1972, 42 U.S.C. §§ 2000e-2000e-17. Her complaint alleged that, since 1974, the Agency had refused to rehire her in retaliation for her own prior charges of sex discrimination and her husband's work on behalf of Agency minority employees. She also claimed that she had personally suffered from the Agency's discriminatory practices against the foreign-born and women. In late 1977, another job applicant, who had been denied employment by the Agency earlier in the year, filed a Title VII class claim on behalf of female applicants and employees against whom the Agency had discriminated in hiring and promotion. In April 1978, the class was conditionally certified "to include 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." Joint Appendix

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("J.A.") at 22. Later that month, an Agency contract employee filed a complaint charging that she had been denied a permanent Agency position on account of sex. In November the three cases were consolidated. In the interim, the district court had permitted Medina and two Agency employees, Josefina Martinez and Rose Kobylinski, to intervene as named plaintiffs and had allowed plaintiffs to supplement the class complaint to include a claim that the Agency maintained "a practice of reprisals against women who have filed sex discrimination charges against the Agency." J.A. at 28. On April 19, 1979, plaintiffs filed a motion for preliminary injunction to enjoin the defendant "from taking any retaliatory action against individuals who oppose the defendant's discriminatory practices or otherwise exercise their rights under Title VII." On May 16, the motion was denied orally without prejudice.

The parties agreed to bifurcate trial of the class claims into "liability" and "remedial" stages, 1 and a bench trial on liability was conducted from May 29, 1979 through June 5, 1979. On October 24, 1979, the district court issued an opinion and order which redefined the class to exclude women in clerical positions and dismissed the class claims. Medina v. Reinhardt, Nos. 77-0360, 77-2019 & 78-0762 (D.D.C. Oct. 24, 1979) (Medina I ), J.A. at 68.

Plaintiffs filed appeals on December 21, 1979, but on September 19, 1980, this court dismissed the appeals under Fed.R.Civ.P. 54(b) 2 because the residual individual claims remained to be heard. Three of the named plaintiffs voluntarily dismissed their individual claims, and trial of Medina's and Kobylinski's claims was conducted on December 15 and 16, 1980. On June 15, 1981, the district court rendered its decision dismissing Medina's claim on the merits and Kobylinski's claim because she had failed to exhaust her administrative remedies. Medina v. Reinhardt, Nos. 77-0360, 77-2019 & 78-0762 (D.D.C. June 15, 1981) (Medina II ), J.A. at 118. This appeal followed.

II. The Class Claims

Although the district court's "Findings of Fact" discussed rebuttal evidence as well as evidence introduced by plaintiffs to establish their threshold case, the court ruled in its "Conclusions of Law" that the plaintiff class had failed to establish "a prima facie case of discrimination on the basis of sex," Medina I at 13, J.A. at 80. The court's conclusion rested primarily on rejection of both parties' statistical studies on hiring patterns as "misleading due to a failure to define adequately the relevant labor market from which the Agency draws for qualified

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personnel," id. at 3, J.A. at 70. The court's objection was that the Census occupational categories used for comparison "with the jobs in issue at the Agency simply do not match." Id. at 6, J.A. at 73. We find, however, that the district court's opinion reflects a basic misperception of the relevancy and role of statistical evidence in the plaintiffs' prima facie showing; hence, we remand for a redetermination of whether plaintiffs can make out a prima facie case of sex discrimination. Further, we must remand because the court made no findings or comment on plaintiffs' evidence of Agency reprisals against women asserting their rights under Title VII.

Had the court credited either appellants' or appellee's definition of the relevant labor market, it would have found "disparities between the women employed at the Agency and the external labor pool of (1) Electronic Technicians, (2) Radio Broadcast Technicians, (3) Writers/Editors, and (4) Foreign Information Specialists." Id. at 8, J.A. at 75. In 1977, when the class action was initiated, these four categories accounted for a major part of the Agency's non-clerical positions. See, e.g., United States Information Agency FY-1978 Affirmative Action Report (Plaintiff's Exhibit No. 22(b)). Consequently, on remand, the district court should reconsider whether these disparities alone or in combination with testimonial evidence 3 are sufficient to raise an inference of discrimination in hiring and, if so, whether that inference was adequately rebutted. Upon remand, the court should also address the class retaliation claim.

A. Relevant Labor Market

The 1972 amendments to the Civil Rights Act of 1964 came in response to the "persistence of discrimination" and the consequent need for more effective enforcement. H.R.Rep.No.238, 92d Cong., 1st Sess. 3 (1971), U.S.Code Cong. & Admin.News 1972, p. 2137. The legislative history particularly focused on the seriousness of sex discrimination, id. at 4-5, and explicitly recognized the need "(t)o correct ... entrenched discrimination in the Federal service." Id. at 24, U.S.Code Cong. & Admin.News 1972, p. 2159. It is noteworthy that Congress itself relied on "statistical evidence" to prove the existence of sex discrimination in higher level government jobs.

Statistical evidence shows that minorities and women continue to be excluded from large numbers of government jobs, particularly at the higher grade levels.

This disproportionate distribution of minorities and women throughout the Federal bureaucracy and their exclusion from higher level policy-making and supervisory positions indicates the government's failure to pursue its policy of equal opportunity.

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Id. at 23, U.S.Code Cong. & Admin.News 1972, p. 2158. See S.Rep.No.415, 92d Cong., 1st Sess., 421-23 (1971). Congress thus extended to federal employees the right to bring individual and class actions under Title VII.

In a Title VII suit, the claimant "carries the initial burden of showing actions taken by the employer from which one can infer, if such actions remain unexplained, that it is more likely than not that ... the employer is treating 'some people less favorably than others because of their race, color, religion, sex or national origin.' " Furnco Const. Corp. v. Waters, 438 U.S. 567, 576-77, 98 S.Ct. 2943, 2949, 57 L.Ed.2d 957 (1978) (quoting International Bhd. of Teamsters v. United States, 431 U.S. 324, 335...

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