Trout v. Lehman

Decision Date15 March 1983
Docket NumberNos. 81-2370,82-1304 and 82-1305,81-2373,s. 81-2370
Citation702 F.2d 1094,226 U.S.App.D.C. 357
Parties31 Fair Empl.Prac.Cas. 286, 31 Empl. Prac. Dec. P 33,437, 226 U.S.App.D.C. 357 Yvonne G. TROUT, et al. v. John F. LEHMAN, Jr., Secretary of the Navy, et al., Appellants. Marie Louise BACH, et al. v. John F. LEHMAN, Jr., Secretary of the Navy, et al., Appellants. Marie Louise BACH, et al. v. John F. LEHMAN, Jr., et al., Appellants. Yvonne G. TROUT, et al. v. John F. LEHMAN, Jr., Secretary of the Navy, et al., Appellants.
CourtU.S. Court of Appeals — District of Columbia Circuit

Appeals from the United States District Court for the District of Columbia (D.C. Civil Action Nos. 73-55 & 76-1206).

William H. Briggs, Jr., Asst. U.S. Atty., Washington, D.C., with whom Stanley S. Harris, U.S. Atty., Royce C. Lamberth and R. Craig Lawrence, Asst. U.S. Attys., and Daniel E. O'Connell, Jr., Atty., Dept. of the Navy, Washington, D.C., were on the brief, for appellants.

Bradley G. McDonald, with whom John F. Karl, Jr., James L. Lyons, Heidi J. Ackerman and Raymond L. Hays, Washington, D.C., were on the brief, for appellees.

Before MacKINNON and EDWARDS, Circuit Judges, and SWYGERT, * Senior Circuit Judge, United States Court of Appeals for the Seventh Circuit.

Opinion for the Court filed by Circuit Judge HARRY T. EDWARDS.

Separate opinion by MacKINNON, Circuit Judge, dissenting in part and concurring in part.

HARRY T. EDWARDS, Circuit Judge:

These appeals arise out of District Judge Harold H. Greene's rulings against the Department of the Navy ("Navy"), an operational unit within the Navy, and certain named officials in four consolidated Title VII 1 sex discrimination cases on the questions of liability, 2 relief, 3 and reconsideration. 4 We are asked to review the District Court's conclusion that the appellants discriminated against a class of female professional technical employees in initial grade placements and promotions. We are also requested to review the District Court's ruling that, once an individual class member shows in a remedial hearing that she was a potential victim of the proven discrimination, the burden shifts to the employer to demonstrate by clear and convincing evidence that its employment decisions with regard to that individual were based on legitimate factors unrelated to the policy of discrimination that has already been proved. Finally, the appellants challenge the District Court's findings of discrimination against two individual employees and the relief ordered for those individuals.

In pursuing these appeals, the appellants have raised an issue concerning the sufficiency of the prima facie case presented by the class plaintiffs. On the record at hand, we believe that the appellants' objections on this score arise from too stringent a view of the requisites of a prima facie case. "The burden of establishing a prima facie case of disparate treatment," the Supreme Court has emphasized, "is not onerous." Texas Department of Community Affairs v. Burdine, 450 U.S. 248, 253, 101 S.Ct. 1089, 1093, 67 L.Ed.2d 207 (1981). On the basis of the evidence of discrimination introduced at trial, Judge Greene properly held that the class plaintiffs had satisfied this burden; the Navy's objections to the plaintiffs' statistical presentation were speculative and unqualified, and the court's decision to disregard those challenges was neither clearly erroneous nor contrary to established legal principles. 5 We hold, however, that evidence introduced at trial effectively rebutted the inference that the defendants had discriminated in initial grade placements, and we reverse that aspect of the District Court's judgment of class-wide liability.

The remaining issues raised in these appeals are less difficult to resolve. As the appellants appeared to concede in the oral argument before this court, the District Court's application of the clear and convincing evidence standard in individual relief hearings is consistent with the law of this circuit. The District Court's findings of discrimination against two individual employees, moreover, rest largely on its evaluation of the design, motive, and intent with which the appellants acted; while "it would be our duty to correct clear error," United States v. Yellow Cab Co., 338 U.S. 338, 342, 70 S.Ct. 177, 179, 94 L.Ed. 150 (1949), the trial court's choice between two permissible views of the weight and direction of the evidence was not clearly erroneous. Nevertheless, we are unable to determine whether the District Court acted within its authority in fashioning relief for these individuals, and we remand several elements of the relief award for further consideration.

I. BACKGROUND
A. Factual Background

The appellants in these cases are officials of the Navy and an agency of the Navy formerly referred to as the Naval Command Support Activity and now known as the Navy Regional Data Automation Center ("NAVCOSSACT/NARDAC"). NAVCOSSACT was originally established as the center of Navy computer operations for national defense purposes; in 1977, NAVCOSSACT was dissolved and its personnel and resources were combined with those of several other agencies to form NARDAC, which develops computer systems and documents for computer systems, delivers the systems and documents to user organizations, and trains personnel in their operation. The appellees are employees or former employees of NAVCOSSACT/NARDAC, some of whom are members of the class of "all female professional technical employees employed by ... [NAVCOSSACT] or ... [NARDAC] at any time between June 6, 1972, and June 4, 1979." 6

The genesis of this protracted litigation, the annals of which fill many volumes and the resolution of which already has consumed a large chunk of judicial resources, can be traced to June 21, 1972. It was then that Yvonne Trout, a NAVCOSSACT computer systems analyst, filed an informal charge of sex discrimination on behalf of herself and a class of female NAVCOSSACT employees. This charge, the relevant portion of which alleged "[t]he existence of a continuing and pervasive pattern of discrimination against women which results in their being deprived of consideration for and promotion to upper grade levels and management positions," II Jt.App. 632-33, was made part of a formal complaint filed by Trout on September 20, 1972. Shortly thereafter, on January 10, 1973, Trout filed a civil action in the District Court alleging, in part, "a continuing and pervasive pattern of discrimination with respect to all professional technical female applicants and employees." Complaint p 63, R.1.

For purposes of this appeal, the extensive procedural history of Trout's civil action may be summarized quickly. In April 1973, Clara Perlingiero, another NAVCOSSACT computer systems analyst who had filed informal charges of sex discrimination in September 1971 and August 1972 and a formal administrative complaint in September 1972, was allowed to join as a party plaintiff. Immediately thereafter, the District Court conditionally certified a class consisting of "all past, present and future female professional technical employees of ... [NAVCOSSACT]." Trout v. Warner, Civ. No. 73-55 (D.D.C. Apr. 6, 1973) (order authorizing class action), R.16. In 1976, two additional cases involving sex discrimination were filed by NAVCOSSACT employees and consolidated with Trout's case; one of these suits alleged discrimination against Marie Bach, a security manager and nonmember of the conditionally certified class. An independent action filed by Trout was also consolidated with her original case in 1978. The conditionally certified class was redefined in June 1979, see text at note 6 supra, and a ten-day trial of the consolidated actions was conducted in June 1980.

B. The District Court's Decisions
1. Class Claims

As the District Court recognized, "[t]he class action aspects of this lawsuit involve an alleged pattern and practice of sex discrimination in [NAVCOSSACT/NARDAC's] hiring, performance evaluation, job assignment, promotion, and award procedures." Trout v. Hidalgo, 517 F.Supp. 873, 877 (D.D.C.1981). Hiring and initial job placement procedures, however, were the subject of only a small fraction of the trial testimony and exhibits. The meager evidence adduced regarding the determination of initial grade levels for new NAVCOSSACT/NARDAC employees uniformly supported the defendants' contention that they were not responsible for initial placement decisions. The plaintiffs, in fact, made no effort whatsoever to rebut the defendants' evidence attributing sole responsibility for initial placement decisions to the Civil Service Commission ("CSC") and the Office of Personnel Management ("OPM"). Notwithstanding this deficiency in the plaintiffs' proof with respect to initial placements, the District Court held, on the basis of extensive statistical evidence and the testimony of a number of present and former NAVCOSSACT/NARDAC employees, that the class plaintiffs had established a prima facie case of sex discrimination in both initial placements and promotions, and that the defendants had failed to rebut that showing.

These conclusions rested primarily, but not exclusively, 7 on the District Court's assessment of the probative value of the competing statistical studies presented by the parties. The plaintiff's expert, whose techniques and findings were ultimately accepted by the court, began his analysis with the undisputed salary differentials between men and women at NAVCOSSACT/NARDAC, reflecting a relative concentration of women in lower-level positions. His study was designed to determine whether these differentials could be explained by differences between men and women in educational attainment and experience. Using data from NAVCOSSACT/NARDAC personnel records, he specified a model in which the dependent variable was salary and the independent variables were (1) level of...

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