815 F.2d 84 (D.C. Cir. 1987), 85-6101, Palmer v. Shultz

Docket Nº:85-6101, 85-6102.
Citation:815 F.2d 84
Party Name:Alison PALMER, et al., Appellants v. George P. SHULTZ, as Secretary of State. Marguerite COOPER, et al., Appellants v. George P. SHULTZ, as Secretary of State.
Case Date:March 24, 1987
Court:United States Courts of Appeals, Court of Appeals for the District of Columbia Circuit

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815 F.2d 84 (D.C. Cir. 1987)

Alison PALMER, et al., Appellants


George P. SHULTZ, as Secretary of State.

Marguerite COOPER, et al., Appellants


George P. SHULTZ, as Secretary of State.

Nos. 85-6101, 85-6102.

United States Court of Appeals, District of Columbia Circuit

March 24, 1987

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[Copyrighted Material Omitted]

Argued Sept. 25, 1986.

As Amended .

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Appeals from the United States District Court for the District of Columbia, (Civil Action Nos. 77-02006 and 77-01439).

Bruce J. Terris, with whom Ellen Kabcenell Wayne, Washington, D.C., was on brief for appellants.

Stuart Henry Newberger, Asst. U.S. Atty., with whom Joseph E. diGenova, U.S. Atty., Royce C. Lamberth, R. Craig Lawrence and Diane M. Sullivan, Asst. U.S. Attys., Washington, D.C., were on brief for appellee.

Bettina M. Lawton, Washington, D.C., was on brief, for amicus curiae, Women's Bar Association of the District of Columbia, urging reversal.

Before WALD, Chief Judge, BORK, Circuit Judge, and HAROLD GREENE, [*] District Judge.

Opinion for the Court filed by Chief Judge WALD.

WALD, Chief Judge:

In this action, a class of women plaintiffs allege various forms of unlawful employment discrimination in the Foreign Service from 1976 to 1983. After a trial, the District

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Court found that no unlawful discrimination had occurred. See 616 F.Supp. 1540 (D.D.C.1985). This appeal followed. The record, however, discloses that the District Court's decision was premised on errors of law and that several of its critical findings of fact were clearly erroneous. Consequently, we reverse, and remand for further proceedings in accordance with this opinion.


  1. The Foreign Service and Its Employment Practices

    The Foreign Service is our nation's professional diplomatic corps. Members of the Service represent the interests of this nation abroad and assist the Secretary of State in the formulation of foreign policy at home. See 22 U.S.C. Sec. 3904(1)-(2). The organization of Foreign Service personnel draws on the model of the United States military as well as the United States civil service. See S.Rep. No. 913, 96th Cong., 2d Sess. 2 (1980), U.S.Code Cong. & Admin.News 1980, P. 4419. For example, the Foreign Service is a "rank-in-person" system: members of the Service have an individualized rank which is independent of the rank of the particular job they happen to hold at any given time. H.R.Rep. No. 992, pt. 1, 96th Cong., 2d Sess. 3 (1980).

    The Foreign Service also copies the military in its "up or out" personnel system. Individuals must serve a probationary period of up to five years before they can receive a career appointment in the Service. 22 U.S.C. Sec. 3946. If at the end of that period an individual has not received a career appointment, he or she must leave the Service. Id. Sec. 3949. (Although according to the Foreign Service Act of 1980, the term "Foreign Service Officer" refers only to members of the Service with career appointments, and those serving under a limited, probationary appointment are called "career candidates," the parties to this lawsuit use the term "Foreign Service Officer," or "FSO," to refer to those serving under both career and limited appointments. To avoid confusion, we will do likewise.)

    The Foreign Service assigns its officers to one of four areas of functional specialization, known as "cones": political, economic, administrative, and consular. Officers in the political and economic cones deal with, respectively, political and economic dimensions to foreign relations and foreign policy. Officers in the administrative cone "are responsible for the support operations of U.S. embassies and consulates." 616 F.Supp. at 1544 (p 5). Officers in the consular cone "work closely with the public providing assistance to American travelers and residents abroad, issuing visas [and dealing with] other immigration related issues." Id. (p 6). As the District Court expressly found, the State Department does not encourage FSOs to change cones, and "[o]fficers are expected to serve the major portion of their time in the Service" in the cones to which they were initially assigned. Id. (paragraphs 10, 14). Some officers, however, do switch cones. Senior FSOs who have demonstrated leadership ability may transfer into a "prestigious" program direction cone. Id. at 1554 (p 104). Other FSOs are occasionally given temporary assignments to other cones or to some "inter-functional" positions. Id. at 1550 (p 70).

    Most FSOs applying to the Foreign Service at junior entry levels must take a written examination. Beginning in 1975, the examinations have tested applicants for aptitude in all four functional areas, and the Foreign Service has used the results of these examinations to determine a new FSO's initial cone assignment. Id. at 1545 (p 15.) 1 A relatively small number of individuals have entered the Service laterally

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    as mid-level FSOs. These lateral entrants bypassed the examination process and "selected, in advance, the functional field in which they wished to compete and were evaluated only for that specific cone." Id. (p 17). 2

    Once in the Foreign Service, individuals change specific jobs frequently; the State Department has a policy of assigning individuals to positions for a set period of time, generally two to three years. See id. at 1550 (p 71); H.Rep. No. 96-992, pt. 1, 96th Cong., 1st Sess. 3 (1980). Since 1975, job assignments in the Foreign Service have been made pursuant to an Open Assignment Policy, in which all members of the Service receive a list of vacant positions and submit "a bid list" indicating their preferences. These bid lists are compiled into a "bid book" from which assignment panels make their selections, after considering the interests and preferences of the bureau in which each position is located. Id. at 1550 (paragraphs 73, 74). As previously indicated, some FSOs receive "out-of-cone" assignments pursuant to this process but in the main, job transfers are made inside the cones of initial assignment. In addition, FSOs do not necessarily receive a job position with a rank corresponding to the individual's personal rank. Positions that have a higher rank than the individual are known as "stretch" assignments. Positions with a lower rank than the individual's are "down-stretch" assignments. Pursuant to the Open Assignment Policy, individuals do not receive stretch or downstretch assignments unless they bid for them, but as with any other assignment, individuals do not receive these assignments simply because they bid for them. Id. at 1551 (p 77).

    The Foreign Service prepares annual written evaluations of its officers' job performance. In addition to rating the actual past performances of FSO's, the evaluations rate the potential of the FSOs future job performance. 616 F.Supp. at 1549. The State Department also gives out Honor Awards in recognition of outstanding achievement. In descending order of prestige are the Distinguished Honor Award, the Superior Honor Award, and the Meritorious Honor Award. See Plaintiffs' Post-Trial Brief at 112-13.

    Except for Senior members, salaries in the Foreign Service are based on a schedule established by the President which consists of nine salary classes. 22 U.S.C. Sec. 3963. The Secretary of State assigns all Foreign Service Officers to a particular salary class. Id. Sec. 3964. By statute, except in limited circumstances, a career candidate for appointment as a Foreign Service Officer may not be initially assigned to a salary class higher than class 4 (class 1 being the highest). Id. Sec. 3947. Usually career candidates are placed initially in class 7 or class 8. Promotions from one salary class to another are made by the Secretary of State after receiving recommendations and rankings submitted by selection boards which evaluate the members of each class. Foreign Service Officers do not compete for promotions until the transition from class 6 to class 5; until then, they are promoted at the end of an established time period if they perform their duties satisfactorily. See Joint Appendix ("J.A.") at 117-121; Defendant's Post-Trial Brief at 96. 3

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  2. The History of This Litigation

    This class action began over ten years ago when appellants filed their complaint alleging that widespread discrimination against women in the Foreign Service violated Title VII of the Civil Rights Act of 1964, as amended in 1972 to cover employment discrimination in the federal government. See 42 U.S.C. Sec. 2000e-16. The parties subsequently resolved by consent decree all claims relating to admission into the Foreign Service. 4 The appellants' claims of discriminatory personnel actions against women already in the Foreign Service proceeded to trial in the District Court. The parties agreed to try initially only the issue of liability, leaving appropriate remedies to a subsequent phase of the proceedings, if necessary. After trial on the liability issue, the District Court concluded that appellants "failed to show by a preponderance of the evidence any sexual discrimination by the State Department." 616 F.Supp. at 1561. The court entered a final judgment for the Secretary of State, dismissing the complaint. Id.

    This appeal followed from the District Court's failure to find sex discrimination in seven different types of personnel practices. 5 First, the appellants claim that from 1976 to 1983, the Foreign Service discriminated against women in the initial cone assignments of entering FSOs; the State Department assigned proportionally fewer women than men to the political cone and proportionately more women than men to the consular cone. This disparity was allegedly caused by the differing scores of women and men on the Foreign Service entrance examinations, producing a disparate impact on women and men candidates in violation of Title VII. Second, women were given...

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