McKenzie v. Sawyer, 1
| Decision Date | 27 July 1982 |
| Docket Number | 81-1755 and 81-1809,I,Nos. 81-1754,A,AFL-CI,AFL-CIO,No. 1,1,s. 81-1754 |
| Citation | 221 U.S.App.D.C. 288,684 F.2d 62 |
| Parties | 29 Fair Empl.Prac.Cas. 633, 29 Empl. Prac. Dec. P 32,948, 221 U.S.App.D.C. 288 Alfred U. McKENZIE, et al., individually and on behalf of all others similarly situated v. Danford L. SAWYER, Jr., individually and as Public Printer of the United States and his agents, assigns and successors in office, Appellant. Alfred U. McKENZIE, et al., individually and on behalf of all others similarly situated v. Danford L. SAWYER, Jr., individually and as Public Printer of the United States and his agents, assigns and successors in office Washington Printing and Graphic Communications Unionnternational Printing and Graphic Communications Union of North America,ppellant. Alfred U. McKENZIE, et al., individually and on behalf of all others similarly situated v. Danford L. SAWYER, Jr., individually and as Public Printer of the United States and his agents, assigns and successors in office Washington Printing and Graphic Communications Unionnternational Printing and Graphic Communications Union of North America, |
| Court | U.S. Court of Appeals — District of Columbia Circuit |
Appeals from the United States District Court for the District of Columbia (D.C. Civil Action No. 73-0974).
Whitney M. Adams, Asst. U. S. Atty., Washington, D. C., with whom Charles F. C. Ruff, U. S. Atty., Washington, D. C., 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 Sawyer, et al., appellants in No. 81-1754 and appellees in Nos. 81-1755 and 81-1809. David H. Shapiro, Asst. U. S. Atty., Washington, D. C., also entered an appearance for Sawyer, et al.
Daniel B. Jordan, Washington, D. C., with whom Thomas P. Powers, Washington, D. C., was on the brief, for Washington Printing and Graphic Communications Union No. 1, appellant in No. 81-1755 and appellee in No. 81-1809.
Douglas L. Parker, Washington, D. C., with whom Elliot M. Mincberg, Dale F. Swartz and Roderic V. O. Boggs, Washington, D. C., were on the brief, for McKenzie, et al., appellees in Nos. 81-1754 and 81-1755 and cross-appellants in No. 81-1809.
Before BAZELON, Senior Circuit Judge, and MIKVA and GINSBURG, Circuit Judges.
Opinion for the Court filed by Circuit Judge MIKVA.
In this lawsuit, black employees of the Offset Press Section (OPS) of the Government Printing Office (GPO) charge that they have been the victims of racial discrimination in violation of Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e-16 (1976). The case is the second employment discrimination suit against GPO to be decided by this court this year, see Thompson v. Sawyer, 678 F.2d 257 (D.C.1982). It was brought as both an individual and a class action, with the class certified to be all present, past, and future black employees of OPS. Record (R.) 8. The complaint alleges that GPO engaged in pervasive failures to hire, train, and promote black employees at all levels within OPS. Despite the fact that a remedy under Title VII was extended to employees of the federal government-and GPO-only in 1972, the plaintiffs contend that patterns of illegal discrimination began at GPO far earlier and have persisted to this day.
The district court granted plaintiffs' motion for summary judgment on all class claims of liability under Title VII. 1 McKenzie v. McCormick, 425 F.Supp. 137 (D.D.C.1977). GPO's efforts to seek reconsideration were denied. After extensive study, several proposals, and intervention by the Washington Printing and Graphic Communications Union, the district court issued its remedial decree, over four years later. McKenzie v. Saylor, 508 F.Supp. 641 (D.D.C.1981).
The relief order mandated sweeping changes in methods of hiring, training, and promoting in OPS. Stringent goals and timetables were set to ensure that discrimination within OPS was swiftly brought to an end. For example, GPO was directed to fill 90% of journeyman-i.e., craft printer-vacancies in OPS with black OPS trainees, until 90% of journeymen in OPS were black, id. at 653. Both the district court and this court have denied GPO's requests for stay of the injunctive order.
The relief order also included back pay, for members of the plaintiff class who demonstrate that they applied, or, but for discrimination, would have applied for advancement within OPS. GPO could rebut such showings by plaintiffs only with proof that the position was filled by a black or that the class member was unqualified. Back pay was extended for the full two-year period allowable under Title VII, 42 U.S.C. § 2000e-5(g) (1976), with the possibility that some back pay awards would reach before the 1972 extension of Title VII to federal employees. Amounts of back pay due were to be calculated on the basis of employment decisions dating back still further, to August 8, 1969, the date of the first Executive Order prohibiting employment discrimination within GPO, 34 Fed.Reg. 12,985 (1969).
In this appeal, GPO concedes only that racial discrimination may have existed within OPS well before the extension of the right to sue under Title VII to federal employees. GPO contends that beginning before 1972 and continuing thereafter it has made extensive efforts to end discrimination within OPS, and that the district court therefore erred in granting summary judgment to the plaintiffs on the class claims. GPO also argues that the remedial decree imposed goals that are unnecessary and unjust, both to GPO and to others seeking employment in OPS. Finally, GPO contends that the back pay award imposed an unjustifiably rigid rebuttal burden on GPO and erred in allowing recovery for any events predating the right of federal employees to sue under Title VII.
We affirm in part and remand in part. On liability, we find that the district court's grant of summary judgment was proper in all respects save the determination that GPO had discriminated in hiring journeymen after 1971. On the issue of whether OPS has continued to discriminate in hiring journeymen, we remand to the district court for trial, should the plaintiffs wish to persist. As to the remedy, we must of course vacate those aspects of the decree that were directed towards discrimination in the hiring of journeymen continuing past 1971. Save for a determination that the goals must be modified to some extent, all other aspects of the injunctive decree are affirmed. The award of back pay is also affirmed, except insofar as it applies to the failure to hire journeymen from among the plaintiff class after 1971. 2
Title VII prohibits employers from discriminating among their employees on racial grounds in the terms, conditions, or privileges of employment, 42 U.S.C. § 2000e-2(a)(1) (1976). It also forbids racial discrimination in the provision of training opportunities. Id. § 2000e-2(d).
This case comes to us in the posture of an appeal from a grant of summary judgment for the plaintiffs. While the factual disputes involved in most Title VII suits preclude their resolution on summary judgment, summary judgment is available in an appropriate Title VII case, see Sagers v. Yellow Freight System, Inc., 529 F.2d 721, 729 (5th Cir. 1976). It is for us to decide, therefore, whether the district court properly determined that the case posed no genuine issues of material fact and the plaintiffs were entitled to judgment as a matter of law, Fed.R.Civ.P. 56(c); Stoller v Marsh, 682 F.2d 971, 972 (D.C.Cir.1982). 3 We begin with the facts that were not at issue at the time the district court granted plaintiffs' motion for summary judgment.
The GPO is a unit of the legislative branch employing workers in the competitive service. OPS is a division of the Offset section, one of four parts of the Production Department at GPO. At the time of the lawsuit, OPS employed five categories of workers relevant here. Supervisors included foremen, assistant foremen, and group chiefs. Journeymen, qualified craft workers in apprenticeable trades, were responsible for operating most of the machinery in OPS. Craft uprates operated some of the more complicated machines such as the two-color or the web press and sometimes performed supervisory duties. Offset press assistants were participants in a training program for journeyman positions, eligible for promotion to journeyman vacancies after successful completion of the training program. Finally, printing plant workers were unskilled helpers who performed such tasks as loading and cleaning.
Wages for skilled workers in OPS are set by an annual agreement between the pressmen's union and the Public Printer, subject to approval by Congress, see 44 U.S.C. § 305 (Supp. IV 1980). Supervisors and uprates receive an incremental percentage of the journeyman rate; for example, foremen and web pressmen receive 130% and 107% of the journeyman rate respectively. Offset press assistants are paid a percentage ranging from 50% to 90% of the journeyman rate, depending on their advancement within the training program. R. 19, Exhibit (Ex.) 4. Printing plant workers are paid the lowest rates within OPS.
After Title VII was extended in 1972 to provide a remedy for federal employees charging employment discrimination, two administrative complaints were filed against OPS. The McKenzie complaint, filed on March 12, 1973, by a black journeyman with many years of service at GPO, charged OPS with discrimination in promotion to uprate and supervisory positions. The Coalition of Minority Workers' complaint (CMW complaint), filed June 4, 1973, alleged discrimination in the training and promotional opportunities made available to black printing plant workers and offset press assistants, as well as in promotion upwards from journeyman positions. Both complaints were rejected by GPO, and became the basis for this lawsuit. 4
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