Full opinion text
FINDINGS OF FACT AND CONCLUSIONS OF LAW CARL O. BUE, Jr., District Judge. I. Introduction Plaintiff Riley D. Pouncy, a black male, brought this employment discrimination action pursuant to Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq. (1978), and the Civil Rights Act of 1866, 42 U.S.C. § 1981 (1974), on behalf of himself and all other Blacks who have been discriminated against by the defendant Prudential Insurance Company of America, pursuant to Rule 23(a) and 23(b)(2), Fed.R.Civ.P. On September 29, 1978, the Court provisionally certified a class consisting of all present and future black employees in the Administrative Section of defendant’s Southwestern Home Office in Houston, Texas, plus all former black employees in the Administrative Section at the Southwestern Home Office in Houston who were in defendant’s employ on or after October 31, 1973. By order of August 6, 1979, the Court modified the class previously certified to exclude part-time and commissary workers and wage band employees and granted the parties’ motion to bifurcate the trial. At the conclusion of the evidence on liability, the Court requested additional briefing by the parties and took the case under advisement. Pursuant to Rule 52, Fed.R. Civ.P., the Court hereby enters its Findings of Fact and Conclusions of Law detailing the reasons for its conclusion that plaintiff has failed to sustain his burden of proving that he or the plaintiff class has been discriminated against by defendant on the basis of race and that as a consequence the defendant should prevail. Because of the multiple legal issues involved as well as the complex statistical and other proof discussed as to each, the case authorities relied upon are examined in the Court’s Findings of Fact, rather than set forth separately in the Conclusions of Law. II. Findings of Fact A. Discriminatory Treatment 1. Plaintiff Riley D. Pouncy 1. Plaintiff Riley D. Pouncy is a black male citizen of the United States and a resident of Houston, Harris County, Texas. 2. Defendant Prudential Insurance Company of America is a duly incorporated organization, authorized to do business within the State of Texas, and is an employer within the meaning of 42 U.S.C. § 2000e et seq. (1978). 3. Plaintiff Pouncy was initially hired by defendant on or about September 27, 1965, as a chauffeur-driver, which is a level 4 position within the office services division in the administrative section of defendant’s Southwestern Home Office. Plaintiff’s duties as a chauffeur-driver included distribution of incoming mail, preparation of outgoing mail for delivery to the post office, and other miscellaneous functions akin to those of a shipping and receiving clerk. 4. On or about April 15, 1971, plaintiff was transferred to the position of multilith operator, also a level 4 position, with the duplicating section of the office services division. Plaintiff was first assigned to operate a 360 A. B. Dick printer, but within several months he was moved to a 1250 multilith, which is a more complex printing machine. Plaintiff was trained for the operation of these machines by E. J. Wilkins, who was his supervisor in the duplicating section from 1971 to 1975. 5. On May 21, 1973, some two years after plaintiff had commenced working in the duplicating section, one Olga Aschenbeck, a white female, began work in that section as a copyprint operator, which is a level 2 position. Ms. Aschenbeck had previously been employed as a commissary worker in defendant’s Southwestern Home Office from March 12, 1969, to May 18, 1973, when she resigned in order that she might be reassigned to office services. Ms. Aschenbeck filled a vacancy created by the promotion of Mary Harris, a black woman, to a level 4 position elsewhere in office services. On November 5, 1973, Ms. Aschenbeck was placed in training for a multilith operator’s job and in 20 days was promoted to that position, as a level 4. At this time, the duplicating section of the office services division consisted of Mr. E. J. Wilkins, supervisor; Ms. Wanda Simms, assistant supervisor; plaintiff, Ms. Aschenbeck and another Xerox copy machine operator. Approximately fifteen months later, in March of 1975, Mr. Wilkins was transferred to the auditing division within the company, and Ms. Simms was promoted to the supervisor’s position. At the same time it was announced by Mr. Wilkins and Mr. Hans-berry, the manager of office services, that Ms. Aschenbeck had been promoted to assistant section supervisor of the duplicating section, a level 5 position. 6. Plaintiff, believing that he had been discriminatorily denied the promotion which Ms. Aschenbeck received, filed a charge of discrimination with the Equal Employment Opportunity Commission (hereinafter “EEOC”) on April 10, 1975. Plaintiff’s Exhibit 12. On August 28, 1975, the EEOC issued its determination in the matter, concluding that there was reasonable cause to believe that plaintiff had been denied the promotion on the basis of his race. Plaintiff’s Exhibit 1. On October 14, 1975, the EEOC issued its “Notice of Right to Sue Within 90 Days,” Plaintiff’s Exhibit 2, and on October 31, 1975, plaintiff filed his original complaint in this Court. 7. In March of 1976, plaintiff was transferred into the dental claims department of defendant’s Southwestern Home Office as a claims examiner. Upon his transfer into the department, plaintiff was a level 4 in training for a level 5 position. After three months in the department, plaintiff received his promotion to level 5. Plaintiff’s duties as a claims examiner included the examination and payment of dental claims. In early 1977, plaintiff was promoted to a claims quality reviewer, a level 6 position, in which he examined the more complex dental claims prior to payment and advised other claims examiners how and whether to pay dental claims. During the year in which plaintiff worked in the dental claims department there were five or six other Blacks in his section. On May 3,1977, plaintiff was terminated. Plaintiff has never filed an EEOC charge based on his discharge by defendant and has never sought to amend his complaint in this proceeding to allege that his discharge was retaliatory or even discriminatory. (a) Defendant’s Failure to Promote Plaintiff 8. The decision to promote Ms. Aschenbeck rather than the plaintiff to assistant section supervisor was made by Mr. Wilkins, the section supervisor, and Mr. Hans-berry, who was manager of the office services division. Based on personnel evaluations and their observations of plaintiff and Ms. Aschenbeck during their tenure in the section, Wilkins and Hansberry concluded that although plaintiff had more education and seniority in the duplicating section, plaintiff lacked other qualities necessary to be a supervisor. For example, in a March 18, 1974, a personnel appraisal report on plaintiff, Mr. Wilkins, plaintiff’s supervisor, indicated that plaintiff “seems to have difficulty in communicating with others in the section, and for this reason I feel it would be very difficult for him to train other employees.” Wilkins further recommended that it “would be helpful for him if he would learn to communicate with others and to enroll in some of the study courses offered by the Company.” Defendant’s Exhibit 21, page 24. On the other hand, in a September 24, 1974 evaluation of Ms. Aschenbeck, Mr. Wilkins described her as the “type of employee who is a real pleasure to work with,” as well as “very cooperative” and someone who “gets along well with almost everyone.” Defendant’s Exhibit 22. In addition, Mr. Wilkins found Ms. Aschenbeck to have a pleasant and businesslike attitude, as well as an ability to reschedule projects and to explain tactfully to the various division heads why their work had to be rescheduled. 9. Further testimony established that plaintiff was frequently sullen and sharp with others in his division, was inflexible with regard to the rescheduling of work that was often necessary in the section, and was uncooperative about working overtime. In addition, other incidents such as plaintiff’s confrontations with Marian Tipton and Norman Schnatterer in two separate incidents in the commissary, see Defendant’s Exhibit 21 at p. 23, as well as a subsequent clash with Mr. Robbins over plaintiff’s parking in unauthorized areas, are consistent with the Court’s finding that although plaintiff was an able worker, he was also a defensive, uncommunicative individual who believed that company rules did not apply to him. In short, he lacked the ability to work as part of a team effort. Thus, although plaintiff had performed and did perform well in his subsequent period of employment for defendant in other positions, at the time he was passed over for promotion, his supervisors reasonably concluded that he lacked the necessary skills in communication and training ability to be a supervisor. Therefore, the Court finds that the selection of Ms. Aschenbeck over plaintiff was not based on racial discrimination. Rather, the Court concludes that this decision was based on a good-faith, rational evaluation of the relative qualifications and abilities of the two individuals in question. 10. In order to establish a prima facie case of racial discrimination according to a theory of disparate treatment, a Title VII complainant must prove: “(1) that he belongs to a [protected] minority; (2) that he applied for and was qualified for a job for which the employer was seeking applicants; (3) that, despite his qualifications, he was rejected; and (4) that, after his rejection, the position remained open and the employer continued to seek applications from persons of complainant’s qualifications.” McDonnell Douglas Corp. v. Green, 411 U.S. 792, at 802, 93 S.Ct. 1817, at 1824, 36 L.Ed.2d 668 (1973). With regard to his claim of denial of promotion, plaintiff clearly satisfies the first McDonnell Douglas requirement, and the Court believes that he would have made formal application for the assistant supervisor’s position had he known of the vacancy, thus fulfilling the second prong. The Court finds, however, that plaintiff cannot satisfy the third requirement. Although he had achieved technical proficiency in his performance in the duplicating section, he lacked the necessary communication, leadership and training skills to perform as a supervisor. Thus, the Court finds that plaintiff has failed to establish a prima facie case of discriminatory treatment on the basis of his race. 11. In the alternative, even if plaintiff had established a prima facie ease according to the McDonnell Douglas standard, the Court finds that defendant has adequately rebutted plaintiff’s proof inasmuch as defendant has established that the decision to promote Ms. Aschenbeck rather than plaintiff was made on the basis of factors other than plaintiff’s race. See Findings of Fact Nos. 8 and 9. Numerous courts have indicated that an employee’s “ability to work amicably with fellow employees” is a valid criterion, and therefore not an impermissible consideration, in selecting someone for a supervisory position. Nance v. Union Carbide Corp., 540 F.2d 718, 727 (4th Cir. 1976); see also Ayon v. Sampson, 547 F.2d 446, 451 (9th Cir. 1976); Levens v. General Services Administration, 391 F.Supp. 35, 36 (W.D. Mo.1975), aff’d, 538 F.2d 332 (8th Cir. 1976); Burns v. Thiokol Chemical Corp., 6 FEP 261, at 268 (N.D.Ala.1971), rev’d on other grounds, 6 FEP 269 (5th Cir. 1973). 12. Since the Court finds that defendant has met its burden of proving a legitimate, non-discriminatory reason for its actions, the burden thus shifts to plaintiff to prove by a preponderance of the evidence that the articulated reason for plaintiff’s non-selection was merely a pretext for racial discrimination. Turner v. Texas Instruments, 555 F.2d 1251 (5th Cir. 1977). The Court finds no evidence that the reasons articulated for the challenged actions were pretextual; accordingly, plaintiff has failed to satisfy its ultimate burden of establishing that he was discriminated against on the basis of his race when he was denied a promotion to assistant section supervisor of the duplicating section. (b) Plaintiff’s Discharge 13. Defendant has raised the question whether the issues surrounding plaintiff’s termination are properly before this Court, in view of plaintiff’s failure to file an EEOC complaint based on his termination, to amend his complaint in this case to cover his discharge, or even to include or refer to his discharge in the Pretrial Order in this case. See Defendant’s Post Trial Brief at pp. 14-15. However, while a court is ordinarily without jurisdiction to consider a discriminatory act which is not made the subject of a timely EEOC charge, United Air Lines v. Evans, 431 U.S. 553, 558, 97 S.Ct. 1885, 1889, 52 L.Ed.2d 571 (1977), the rule is not without exception. For example, jurisdiction may be extended to claims of discrimination which are like or reasonably related to allegations contained in the charge and which grow out of such allegations during the pendency of the charge before the EEOC. Ramirez v. National Distillers & Chemical Corp., 586 F.2d 1315, 1320 (9th Cir. 1978); Sanchez v. Standard Brands, 431 F.2d 455, 466 (5th Cir. 1970); Haggerty v. Exxon Corp., 17 FEP 1322 (S.D.Tex.1978); but see Oubichon v. North American Rockwell Corp., 482 F.2d 569, 571 (9th Cir. 1973); Hubbard v. Rubbermaid, Inc., 436 F.Supp. 1184, 1194 (D.Md.1977) (even if claim is like or related to original charge, it must arise during pendency of original charge before the EEOC in order for the district court to have jurisdiction). However, in the case at bar, plaintiff’s termination on May 3, 1977, did not occur during the pendency of the EEOC investigation, which concluded on October 14, 1975, with the issuance to plaintiff of a notice of right to sue. See Finding of Fact No. 6. Accordingly, plaintiff’s termination would not constitute a claim reasonably related to and growing out of the allegations of his EEOC charge during its pendency before the Commission. In addition, the district court has jurisdiction over claims of discriminatory retaliation for previously filed EEOC charges. Pettway v. American Cast Iron Pipe Co., 411 F.2d 998, 1002-04 (5th Cir. 1969) (district court held to have ancillary jurisdiction of plaintiff’s claim of retaliatory discharge during pendency of appeal of district court’s dismissal of plaintiff’s original Title VII complaint, even though retaliation claim had not been made the subject of an EEOC charge); Curran v. Portland Superintending School Committee, 435 F.Supp. 1063, 1075-76 (D.Me.1977); Held v. Missouri Pacific Railroad, 373 F.Supp. 996, 1001 (S.D.Tex.1974). While it is not clear at all from plaintiff’s briefs whether he is contending that he was discharged for pursuing his charge before the EEOC, if such a contention were urged, the Court would have jurisdiction of plaintiff’s termination claims. Therefore, out of an abundance of caution to ensure that plaintiff’s claims are fully examined, the Court feels compelled to give a liberal reading to the pleadings before it. Accordingly, the Court finds on such a basis that it has jurisdiction of plaintiff’s discharge claims as claims of retaliatory action in violation of Section 704(a), 42 U.S.C. § 2000e~3(a). However, as stated hereinabove, plaintiff never amended his complaint in this cause to include claims relative to his discharge; neither was the subject of plaintiff’s discharge mentioned in the pre-trial order in this cause. Nevertheless, inasmuch as testimony and evidence relating to plaintiff’s termination were admitted without defendant’s objection and, further, since defendant was afforded the opportunity to defend fully on these issues, the Court views these matters as being tried by implied consent within the scope of Rule 15(b), Fed.R.Civ.P. See Norris v. Bovina Feeders, Inc., 492 F.2d 502, 505-06 (5th Cir. 1974). Finally, even if the Court lacked jurisdiction over this claim because of plaintiff’s failure to make it the subject of a timely charge before the EEOC, such a discriminatory act will nevertheless constitute relevant background evidence to the Court’s consideration of other claims of discrimination. United Air Lines v. Evans, supra, 431 U.S. at 558, 97 S.Ct. at 1889, 52 L.Ed.2d at 578. Therefore, in order to give full vent to all of plaintiff’s claims, the Court will examine the circumstances surrounding plaintiff’s discharge by defendant. 14. The facts surrounding plaintiff’s discharge are relatively simple; plaintiff was discharged on May 3, 1977, for his repeated refusals to perform a legitimate assignment that was part of his job. While plaintiff maintains that he was terminated for his refusal to teach a class in dental claims unless he was given a level promotion commensurate with the increased responsibility, the more credible testimony and documentary evidence indicate that plaintiff refused to simplify a corporate memorandum which related to claim payment guidelines. Plaintiff was first requested by Diana Wong, his immediate supervisor, to rewrite the memo, but plaintiff refused. Defendant’s Exhibit 50. Pláintiff also refused the same request by Janis Blount, who was associate manager of the group claims division, and Dave Streilein, who was the division manager. Defendant’s Exhibits 48 and 49. Ultimately, after plaintiff told Streilein that he would not revise the memo and that if he had to continue to work with Diana Wong, he would “cause a disruption,” Mr. Streilein recommended to Ronald Claiborne, who was the associate general manager of the group insurance area, that plaintiff be terminated; this recommendation was concurred in by Fran Early, the personnel director of defendant’s Southwestern Home Office. See also Defendant’s Exhibits 38 and 79. 15. In view of the defendant’s written policy that refusal to perform a legitimate assignment necessitates “termination with no warning or notice and no option to resign,” Defendant’s Exhibit 6, the Court views plaintiff’s termination as clearly warranted by company policy. In addition, it is clear that plaintiff was given repeated warnings and the opportunity to perform the assignment by Diana Wong, Janis Blount and Dave Streilein. Finally, the facts surrounding the incident and the proposed termination were reviewed by the associate manager over the group insurance area and the personnel director who, after conducting an interview with the plaintiff, concurred in the decision to discharge him. Upon consideration of the witnesses’ testimony and documentary evidence concerning this incident, the Court finds that there is no evidence of racial discrimination attendant to the occasion of plaintiff’s termination. 16. While the Court hereinabove felt obligated to examine the issue of retaliatory discharge, the record of this trial reflects no evidence remotely suggestive of plaintiff’s having been fired in retaliation for filing his EEOC charge some two years earlier. In fact, plaintiff had received a transfer to the dental claims department and two promotions since the filing of his EEOC complaint. See Finding of Fact No. 7. Therefore, the Court concludes that there is no evidence that plaintiff was discharged because of his race or in retaliation for exercising his rights under Title VII. 17. The McDonnell Douglas standard of order and allocation of proof is also applied in individual cases based on discrimination in discharge. See McDonald v. Santa Fe Trail Transportation Co., 427 U.S. 273, 281-285, 96 S.Ct. 2574, 2579-2581, 49 L.Ed.2d 493 (1976); Powell v. Syracuse University, 580 F.2d 1150, 1154-55 (2nd Cir. 1978), cert. denied, 439 U.S. 984, 99 S.Ct. 576, 58 L.Ed.2d 656 (1979); Flowers v. Crouch Walker Corp., 552 F.2d 1277, 1281-82 (7th Cir. 1977); Barnes v. St. Catherine’s Hospital, 563 F.2d 324, 329 (7th Cir. 1977); Turner v. Texas Instruments, 555 F.2d 1251, 1254-55 (5th Cir. 1977); Henry v. Ford Motor Co., 553 F.2d 46, 48 at n. 3 (8th Cir. 1977). But see Stevens v. Junior College District of St. Louis-St. Louis County, 548 F.2d 779, at 781 (8th Cir. 1977); King v. Yellow Freight System, Inc., 523 F.2d 879, 882 (8th Cir. 1975). Thus, in order to establish a prima facie case, plaintiff “must meet the initial burden of proving that he was a member of the protected class, that he was discharged, and produce evidence of disparate treatment from which the Court may infer a causal connection between the basis and the discharge.” Citing McDonnell Douglas Corp. v. Green, supra 411 U.S. at 802, 93 S.Ct. at 1824. 36 L.Ed.2d at 677. B. L. Schlei and P. Grossman, Employment Discrimination Law, at 511 (1976). Although plaintiff meets the first two criteria of the applicable test, plaintiff has produced no evidence that he was terminated for an infraction for which non-minorities were not. Accordingly, the Court finds that plaintiff has failed to establish a prima facie case of racial discrimination based on disparate treatment in his discharge. 18. Even if plaintiff had satisfied the McDonnell Douglas criteria or any standard that would be a likely substitute therefor, the Court finds that defendant has adequately carried its burden of establishing that the decision to terminate plaintiff was prompted by a legitimate consideration-the failure to perform a valid assignment. See Findings of Fact Nos. 14 and 15. Finally, plaintiff has wholly failed to prove that the reason on which defendant’s decision was allegedly based was pretextual. 19. However, regardless of whether the McDonnell Douglas test is utilized, the ultimate issue in an individual discharge case is whether there has been disparate treatment between a member of a racial minority group and others not of that group. Henry v. Ford Motor Co., supra, at 48. It is therefore incumbent upon the Court to consider the full merits of plaintiff’s proof and the company’s defense in order to arrive at a conclusion as to whether plaintiff has been the victim of employment discrimination based on his race. See Peters v. Jefferson Chemical Co., 516 F.2d 447, 450 (5th Cir. 1975). Since there is rarely direct evidence of disparate treatment in the individual discharge case, courts look to other factors that might sustain the inference of discrimination. One of the factors often considered is whether the employee was given repeated warnings and the opportunity to improve. Bolton v. Murray Envelope Corp., 493 F.2d 191, 194 (5th Cir. 1974); Francis v. Allied Service Company of Texas, Inc., 486 F.2d 597, 598 (5th Cir. 1973) (per curiam). In the case of plaintiff’s termination, however, plaintiff’s supervisor and her immediate superiors made repeated efforts to persuade plaintiff to perform the assigned task and to warn him that his refusal was grounds for termination. See Finding of Fact No. 14. 20. Another commonly relied upon factor is whether the complainant was afforded a hearing or the benefit of an investigation prior to termination. See, e. g., Turner v. Texas Instruments, 555 F.2d 1251, 1254 (5th Cir. 1977); Martin v. Chrysler Corp., 10 FEP 329, 332 (E.D.Mich.1974); Goodloe v. Martin Marietta Corp., 7 FEP 964, 966 (D.Colo.1972), aff’d mem., 10 FEP 1176 (10th Cir. 1974). In the instant case, prior to the decision to terminate plaintiff, the situation was reviewed by Ron Claiborne, director of the group insurance division, and by Fran Early, the personnel director, who interviewed the plaintiff. Findings of Fact Nos. 14 and 15. 21. Finally, other courts have looked to whether the employer deviated from its normal patterns and practices in effecting a complainant’s termination. See, Lowry v. Whitaker Cable Corp., 348 F.Supp. 202, 210 (W.D.Mo.1972), aff’d per curiam, 472 F.2d 1210 (8th Cir. 1973). In the instant ease, there is no evidence that defendant’s employees followed anything other than standard operating procedure in making the decision and effecting the termination of the plaintiff. Therefore, the Court finds that plaintiff has failed to sustain the inference that his discharge was the result of racial discrimination. 2. Plaintiffs Witnesses In order to bolster his individual and class claims, plaintiff offered the testimony of several other black former employees in the Administrative Section of defendant’s Southwestern Home Office. (a) Esther DuPont 22. Esther DuPont is a black female who was originally hired into a level 2 position in defendant’s commissary division in 1971. On October 8, 1973, Ms. DuPont was transferred to the office services division where she assumed the position vacated by Olga Aschenbeck upon her promotion to assistant section supervisor. See Finding of Fact No. 5. Approximately nine months later, on July 9, 1974, Ms. DuPont was transferred to the debit insurance services division where she was placed in training for a level 3 position. On September 26, 1974, Ms. DuPont resigned. 23. Ms. DuPont complains about two separate instances in which discrimination was allegedly manifested against her. First, she complains of the discriminatory manner in which commissary workers were chosen for transfer to other divisions and asserts that while Blacks were tested prior to transfer, Whites were not. Three black commissary workers, Esther DuPont, Emma Hagger and Mariba Harrison, were interviewed for the vacancy which occurred in office services in October of 1973. Although Ms. DuPont was the least senior of the three, she received the transfer. While Ms. DuPont was given a clerical test prior to her transfer, as the Court concludes hereinafter, see Finding of Fact No. 53, testing of transferring commissary employees was utilized in a haphazard, but not discriminatory, manner. Further, while Ms. DuPont complains that Whites with less seniority than she were given priority in transferring to clerical jobs, the Court finds that there is no evidence of discrimination manifested by the pattern of transfers of Whites and Blacks from the commissary division. See Finding of Fact No. 52. 24. Secondly, Ms. DuPont claims that after her transfer to the debit insurance services division, she was wrongfully and discriminatorily denied her promised promotion to level 3. However, Ms. DuPont’s supervisors, Cile Cleghorn, who is white, and Lela Raven, who is black, found Ms. DuPont to be belligerent in her attitude and deficient in mastering her job, and therefore undeserving of the promotion. On September 17, 1974, Ms. Cleghorn and Ms. Raven jointly prepared a personnel appraisal report on Ms. DuPont. Defendant’s Exhibit 56. In the appraisal, Ms. Cleghorn described Ms. DuPont as showing “all evidence of a negative, defensive attitude toward her supervisors, co-workers and her present job assignment.” Ms. Cleghorn further indicated that on several occasions it had been called to the attention of her supervisors that Ms. DuPont had “been rude and discourteous, almost to the point of being belligerent, causing tension in the section.” Ms. Raven, the black assistant supervisor, indicated that Ms. DuPont had failed to respond to additional help and training she had received and, therefore, “[i]t now looks questionable whether Esther will qualify for Level 03 due primarily to her unwillingness to learn or perform as needed.” Id. 25. On September 26, 1974, a dispute arose between Ms. DuPont and Ms. Cleghorn, over Ms. Cleghorn’s instructions to Ms. DuPont to re-do a job that she had done improperly. Ms. Cleghorn contacted Al Espenship, manager of the debit insurance services division, who requested that Ron Claiborne, then the personnel manager, discuss the problem with the parties concerned. Defendant’s Exhibit 39. Mr. Claiborne talked with Ms. DuPont for two hours, discussed the matter with her supervisors, and then told Ms. DuPont that the company would work with her. Ms. DuPont refused to return to work and asked Mr. Claiborne to fire her, but he refused and Ms. DuPont resigned. Id. Ms. DuPont filed a charge with the EEOC on September 23, 1974, based on her failure to receive her promotion. Plaintiff’s Exhibit 10. The Commission ultimately determined that there was no reasonable cause to believe that Title VII had been violated. Id. 26. The Court finds no evidence of racial discrimination attendant to defendant’s failure to give Esther DuPont her level 3 promotion. Rather it was the considered judgment of Ms. DuPont’s supervisors, both black and white, that her performance and behavior precluded her advancement. (b) Emma Hagger 27. Emma Hagger, a Black, was hired in December, 1970, into defendant’s commissary division, where she remained until she was hospitalized in October of 1973. She returned to work for a brief period in February of 1974, but she was then physically unable to perform the duties of her former job. Ms. Hagger was terminated effective April 17, 1974, when her company disability benefits expired. Defendant’s Exhibit 23. 28. Ms. Hagger complains of the defendant’s failure to transfer her from the commissary to a position in the clerical division and her subsequent termination. Ms. Hagger testified that she worked part-time in the commissary and substituted in various departments in office services when she was needed. Evidently Ms. Hagger requested on several occasions to be transferred to a clerical position, and she was eventually tested. She also was interviewed by Norma Hightower for the vacancy in the duplicating section created by Olga Aschenbeck’s promotion, see Findings of Fact Nos. 5 and 23, but she was not chosen because of her impending surgery. 29. Following her convalescence, she returned to work in the commissary, but she was advised by her physician that she could not continue in her old job because of her back problems. Ms. Hagger then met with Ron Claiborne to request a transfer to a clerical job because of her physical disability. Mr. Claiborne twice requested that Ms. Hagger’s physician consult with the company physician about her condition, but the Prudential doctors were never contacted by her private physician. See Defendant’s Exhibit 40. Neither did Ms. Hagger renew her contact with Mr. Claiborne about returning to her old job or locating another. Accordingly, in accordance with defendant’s policy, Ms. Hagger was terminated upon the expiration of her company disability. Id. On March 27, 1974, Ms. Hagger filed a charge of discrimination with the EEOC, Plaintiff’s Exhibit 11, which resulted in a determination by the Commission that there was no reasonable cause to believe that Title VII had been violated. Defendant’s Exhibit 24. 30. The Court finds no evidence of discrimination in the events surrounding Ms. Hagger’s requests for transfer or her termination. (c) Murreba Harrison 31. Murreba Harrison, a black female, was hired as a food service worker in defendant’s commissary division in 1964 and remained in this division until the commissary was closed in September, 1977, whereupon her employment was terminated. During her tenure, Ms. Harrison received two promotions, first, to senior food service worker and finally, in September of 1976, to assistant supervisor. 32. Ms. Harrison complains generally of the failure of her supervisors in the commissary to recommend her for transfer to a clerical position in another division of the company. She claims that she was discouraged by her supervisors in her quest for advancement and rebuffed by the personnel administrator when she sought a transfer on her own. The evidence indicates only one clerical position for which Ms. Harrison made specific application and was considered-the copyprint operator job that was awarded to Esther DuPont, a Black. See Finding of Fact No. 23. 33. Further, Ms. Harrison was sent to company-sponsored equal employment opportunity training courses and to a course related to cafeteria operations conducted at the University of Houston. The Court finds that there is no evidence of racial discrimination by the defendant against Murreba Harrison. (d) Luretta Moses 34. Luretta Moses, a black female, was hired by Prudential in 1967 into the insurance services ordinary division as a file clerk, a level 2 position. During her tenure at Prudential, Ms. Moses worked her way up in the level system in positions as a clerk-typist, policy picker, service clerk, commissions calculator, and finally, to the position of senior commissions calculator, a level 6 position in which she remained until her resignation in 1976. 35. Ms. Moses complains that she sought promotions from level 6 without success numerous times, but the specific position which she claims was discriminatorily denied her was a commissions technician’s job that was awarded to Robbie Kerr, a White. The vacancy in the commissions technician position, which was a level 8 job, was caused by the departure of Mary Carnes on maternity leave in October, 1974. Ann Benton, the department supervisor, knew that Robbie Kerr, who had also taken maternity leave from her job at Prudential, was considering returning to work. According to Ms. Benton and Jack Clark, the department manager, Ms. Kerr was highly qualified in all phases of agents’ commission work and had more experience and expertise in the area of commissions than anyone else in the department. Ultimately, the decision was made to offer Ms. Kerr this opportunity, and she accepted. Ms. Kerr returned to Prudential at the same job level in which she had left, a level 8; consequently, the new position did not constitute a promotion for her. It is not unusual for Prudential to attempt to recall an employee on leave to fill a position for which he or she is known to be qualified. 36. On March 6, 1975, Luretta Moses filed a charge of discrimination with the EEOC. Defendant’s Exhibit 25. On May 23,1975, the Commission issued its determination that the evidence did not support Ms. Moses’ charge. 37. Because there is no evidence that Ms. Moses was as qualified as Ms. Kerr for the commissions technician’s job, the Court finds that the selection of Ms. Kerr over Ms. Moses was not based on racial discrimination but rather on Ms. Kerr’s superior qualifications. In addition, there was evidence of attendance problems on the part of Ms. Moses that would justify her supervisors’ reluctance to promote her. Thus, the Court concludes that Ms. Moses’ testimony is not probative of discrimination in this case. (e) Mary Lee Byrd Browning 38. Mary Byrd,- a black female, was hired in June, 1966, into defendant’s ordinary policy division in a level 1 position and was subsequently transferred into the insurance service ordinary division. Like Luretta Moses, Mary Byrd progressed through the level system during her tenure with the Company and was serving as a senior premium reconciliation clerk, a level 6 position, when she resigned in November, 1976. 39. Although Ms. Byrd complains generally about her failure to advance rapidly enough in the company, she raises two specific instances in which she was passed over for promotion. In the first instance, the job to which Ms. Byrd aspired was awarded to Linda Wilmes, who transferred to the Southwestern Home Office from Prudential’s North Central Home Office in June, 1973. At the time of her promotion in September, 1973, to the level 7 assistant supervisor’s position sought by Mary Byrd, Linda Wilmes had been in a level 6 position since August, 1972, while -Ms. Byrd had been a level 5 premium reconciliation clerk since March, 1972. At the same time Ms. Wilmes received the desired promotion, Ms. Byrd receive a promotion to level 6. 40. In addition, it is clear that Ms. Wilmes was superior in qualifications, performance, and attitude to Ms. Byrd and, therefore, that her selection over Ms. Byrd was not racially motivated. 41. The second promotion about which Ms. Byrd complains is that which was awarded to Marty Freeman in April, 1975, when Linda Wilmes went on maternity leave. The evidence reflects in this instance also that the decision not to promote Ms. Byrd to this position was based on her performance and not on racial grounds. Some four months before, in November, 1976, upon the recommendation of the associate manager James Paul, who is black, Ms. Byrd was placed on “increase not recommended” status, the equivalent of probation. Defendant’s Exhibit 51. Mr. Paul recommended that Ms. Byrd be placed on “INR” because of several complaints from field offices and policyholders revealing that she had not been performing her duties . satisfactorily. Mr. Paul reviewed these complaints with Ms. Byrd and advised her that her work was “not up to standard, especially in areas requiring judgment.” The manager of ISO, Jack Clark, also discussed Ms. Byrd’s job performance with her on December 2, 1974, at which time she “agreed that her performance had not been satisfactory and that her discussions with, her supervisor and associate manager [Mr. Paul] had made this clear.” Defendant’s Exhibit 52. Mr. Clark also told her that her supervisor, Ms. Wilmes, and Mr. Paul had recommended that her annual increase be held up. Clark approved their recommendation and Ms. Byrd was placed on increase not recommended status. Mr. Clark further warned Ms. Byrd that her job would be in jeopardy if her performance did not improve. 42. On February 5, 1975, Mr. Clark again spoke with Ms. Byrd about her progress in work performance since the December 2, 1974 probationary status and the quality reviews which had been performed on her by Ms. Wilmes. The result of the quality reports was that Ms. Byrd was then doing “what could best be described as an average satisfactory job,” but still had “some areas where improvement [was] needed. . . . ” Defendant’s Exhibit 53. Based on his recognition that she was then doing an acceptable job, Mr. Clark notified the personnel division to grant her deferred salary increase effective February 10, 1975. 43. The position to which Ms. Byrd desired a promotion became available within two months of her removal from probationary status, at a time when her work was considered merely satisfactory. The decision by Mr. Paul, Mr. Clark, and the lower level supervisors to promote Ms. Freeman was based on quality reviews and the performance and ability of the candidates. See Defendant’s Exhibit 33. In view of testimony concerning several serious errors made by Ms. Byrd as well as her irresponsible attitude toward her work that was readily apparent during her testimony, the Court concurs with Mr. Paul’s assessment indicating his surprise that Ms. Byrd would have expectations of receiving the promotion. Thus, the Court finds that there is no evidence that this denial of promotion to Ms. Byrd was based on racial grounds. 44. Ms. Byrd filed two charges with the EEOC, one on March 6, 1975, and another on April 22, 1975. Defendant’s Exhibits 28 and 29. After investigating these charges, the EEOC determined that the evidence did not support the charges. Defendant’s Exhibit 30. (f) Verne1 Armstrong 45. Plaintiff’s rebuttal witness, Vernel Armstrong, has been employed in defendant’s group health claims division since 1973. Ms. Armstrong complains that although she had progressed from level 2 to a level 5 job by 1974, she has progressed no further since that time, and others with less experience have achieved a level 8 or better. Although Ms. Armstrong named several Whites who had been promoted to higher levels, she admitted on cross-examination that numerous Blacks in her division have achieved promotions as high as level 11. Thus, the Court concludes that Ms. Armstrong’s brief testimony is not probative of racial discrimination within the defendant company. B. Disparate Impact — Class Claims Plaintiff’s claims of class-wide discrimination are based on his theory that defendant’s personnel policies, albeit facially and intentionally neutral, have an adverse impact on members of the protected class. See Griggs v. Duke Power Co., 401 U.S. 424, 91 S.Ct. 849, 28 L.Ed.2d 158 (1971). The practices specifically challenged by plaintiff are numerous, but interrelated. First, plaintiff claims that during the relevant time period, defendant had no experience or educational prerequisites for hires into any of its entry level positions; yet Blacks were concentrated at the very lowest jobs in defendant’s level system and were conspicuously absent at the upper levels. Further, plaintiff maintains that although defendant’s policy of promoting from within is facially neutral, it has a disparate impact on Blacks. This is so because vacancies are not posted, there are no clearly defined criteria to guide supervisors in awarding promotions, and defendant’s management personnel decide which employees will occupy what level and therefore be available for promotion to higher levels. It is axiomatic that in order to establish liability pursuant to this theory, plaintiff must demonstrate that the challenged policies did, in fact, have a disparate impact on the protected class. Therefore, in support of his contentions, plaintiff offered various exhibits in order to illustrate the impact of these policies on defendant’s black employees. Plaintiff’s proof concerned promotions and two closely related areas, salary and utilization. In addition, plaintiff offered some evidence relating to terminations. However, in order to properly determine the validity of plaintiff’s class claims, it is first necessary to set forth some of the relevant practices of defendant, as well as the parameters of the class and the relevant time frame for liability and statistical proof. 1. Parameters of the Class-Commissary Employees 46. On September 29, 1979, the Court provisionally certified the class herein to include all black present and future employees in the Administrative Section of the defendant Prudential Insurance Co. at its Southwestern Home Office building in Houston, plus all black former employees in the Administrative Section at the Southwestern Home Office building in Houston who were in defendant’s employ on or after October 31, 1973, that being two years prior to the date this suit was filed. On August 6, 1979, the Court modified the class previously certified to exclude part-time, commissary and wage band employees. However, the treatment of commissary workers was explored in depth at trial by means of the testimony of several witnesses called by both plaintiff and defendant and by the record of all transfers from that division. Defendant’s Exhibit 55. As a consequence, defendant has requested that the Court redefine the class to include commissary workers in order that defendant may obtain a decision binding upon this group. See Defendant’s Post Trial Brief at p. 1-2. For the reasons set forth hereinafter, the class will remain as redefined and commissary workers will not be included within it. ■ 47. Defendant’s commissary or cafeteria was staffed and operated by defendant during the period that the Southwestern Home Office was located at its Holcombe Boulevard facility. A noon meal was served at the commissary for all Prudential employees; breakfast was provided for some full-time commissary workers. Defendant closed its commissary division on September 1, 1977, in anticipation of the company’s move to its new facility on the West Loop South. 48. During defendant’s operation of the commissary, its staff consisted of approximately 22 persons. Employees in this division fell into several categories, see Plaintiff’s Exhibit 16 at page 11, but included generally food preparers, food service workers, and a small number of supervisory and management personnel. The majority of commissary employees worked a twenty-hour work week and were paid overtime if they worked more than twenty hours; the supervisors and managers worked forty hours a week. However, commissary workers were paid on a salaried basis as opposed to an hourly basis and received the same benefits as other Prudential employees. 49. On occasion, twenty-hour commissary workers were requested to fill in part-time in other divisions within the company. In these instances, the commissary employee would work four hours in the commissary and the balance of the day in the other division of the company. 50. Although some commissary workers were transferred to clerical positions in other divisions of the company, the commissary was not utilized as a training area for other divisions. In fact, during the eight year period from 1969 to 1977, only seventeen people were transferred from the commissary to other divisions. Of these seventeen, nine (or 52.9% of the total transfers) occurred when the commissary was closed in September, 1977. See Defendant’s Exhibit 55. 51. In view of the limited opportunities for advancement within the commissary division and the fact that commissary workers were not generally subject to promotion into other divisions, the Court has serious doubts that the claims of the plaintiff with regard to promotion are typical of the claims of commissary employees. In addition, the vast difference in procedures for transferring from the commissary division to clerical positions in other divisions from the procedures employed in awarding inter-level promotions in other divisions make it clear that plaintiff and the commissary employees whom he seeks to represent are not similarly situated. Accordingly, the Court declines to redefine the class previously certified to include commissary workers. However, because discrimination within this division would be probative of discrimination in other divisions of the administrative section, the Court has examined the evidence concerning testing and transfer procedures in the commissary division. 52. From the evidence before it, the Court is unable to find that transfers from the commissary to other divisions of office services were awarded in a racially discriminatory manner. Five of these transfers occurred prior to the relevant time period of this case. See Findings of Fact Nos. 54 and 55 and Defendant’s Exhibit 55. If the transfers which occurred when the commissary closed are also excluded, there occurred during the relevant time frame only three “promotions” from the commissary to other divisions, one of which was awarded to a White, one to a Black, and one to a Mexican-American. Even considering the evidence of all seventeen transfers, no discrimination is manifested inasmuch as seven of the total transferred were Blacks, eight were Whites and two were Mexican-Americans. 53. The Court further finds that the determination to test an employee prior to transfer from the commissary was not made in a racially discriminatory manner. Of the seven Blacks transferred, four were subjected to a written test and three were not. Of the eight Whites transferred, two were tested and six were not; of the two Mexican-Americans, one was tested and one was not. Thus, it is clear that testing was utilized as the particular instance, rather than the race of the transferee, demanded. Therefore, the Court concludes that the evidence concerning transfers from and testing in the commissary division is not probative of racial discrimination within that division or elsewhere in the Administrative Section of Defendant’s Southwest ern Home Office. 2. Relevant Time Periods for Class Claims and Statistics 54. With respect to liability under Title VII, the class consists only of those employees or former employees who could have filed valid charges of discrimination with the EEOC at the time the class representative, Riley Pouncy, filed his charge. Wetzel v. Liberty Mutual Insurance Co., 508 F.2d 239 (3rd Cir. 1975). Plaintiff filed his EEOC charge on April 10, 1975; accordingly, liability under Title VII may be predicated only on actions by defendant on or after October 13, 1974, i. e., 180 days prior to the date plaintiff’s EEOC charge was filed. See Crawford v. Western Electric Co., supra, at 1309. 55. Under 42 U.S.C. Section 1981, the federal courts borrow state statutes of limitations. See, e. g., Johnson v. Railway Express Agency, Inc., 421 U.S. 454, 462, 95 S.Ct. 1716, 1721, 44 L.Ed.2d 295 (1975); Page v. U. S. Industries, 556 F.2d 346, 351 (5th Cir. 1977). The applicable Texas statute of limitations for claims under Sec. 1981 is two years. Dupree v. Hutchins Bros., 521 F.2d 236, 237-38 (5th Cir. 1975); Prophet v. Armco Steel, Inc., 575 F.2d 579, 580 (5th Cir. 1978) (per curiam). Since plaintiff’s complaint based on Sec. 1981 claims was filed with this Court on October 31, 1975, liability under Sec. 1981 extends only to actions by defendant on or after October 31, 1973. Accordingly, any claim in existence between October 31, 1973, and October 31, 1974, the earliest date on which liability under Title VII may be found, must be analyzed under the standards applicable to 1981 claims. With respect to those claims covered only by Sec. 1981, the plaintiff and the class must make a showing of “purposeful discrimination” before casting the burden on defendant to rebut the claim. Moreover, in the context of alleged employment discrimination, a violation of Sec. 1981 cannot be established by statistical evidence alone. Williams v. DeKalb County, 577 F.2d 248, mod. on reh’g, 582 F.2d 2 (5th Cir. 1978); Grigsby v. North Mississippi Medical Center, Inc., 586 F.2d 457, 460-61 (5th Cir. 1978). 56. Inasmuch as liability for disparate treatment must be based on claims that are thus actionable, it therefore follows that statistical evidence must reflect personnel decisions that would also be actionable in order to constitute the basis of a prima facie case. The Supreme Court in Hazelwood School District v. United States, 433 U.S. 299, 97 S.Ct. 2736, 53 L.Ed.2d 768 (1977), gave substantial guidance in the area of time frame analysis, i. e., the period in which statistics must be analyzed. The plaintiffs in Hazelwood established that there was a substantial disparity between the percentage of black teachers employed by the school district in the school years 1972-1973, and 1973-1974, and the availability of black teachers in the relevant geographical area. However, the Supreme Court stated that: “The Court of Appeals totally disregarded the possibility that this prima facie statistical proof in the record might at the trial court level be rebutted by statistics dealing with Hazelwood’s hiring after it became subject to Title VII. . A public employer who from that date forward made all its employment decisions in a wholly nondiscriminatory way would not violate Title VII even if it had formerly maintained an all white workforce by purposefully excluding Negroes.” (Footnote omitted.) 433 U.S. at 309, 97 S.Ct. at 2742, 53 L.Ed.2d 788. See also EEOC v. United Virginia Bank, 615 F.2d 147, 150 (4th Cir. 1980). Further, in United Air Lines v. Evans, 431 U.S. 553, 97 S.Ct. 1885, 52 L.Ed.2d 571 (1977), the Supreme Court held that: “A discriminatory act which is not made the basis of a timely charge is the legal equivalent of a discriminatory act which occurred before the statute was passed.” 431 U.S. 558, 97 S.Ct. 1889, 52 L.Ed.2d 588. Thus, the relevant statistics for purposes of analyzing the disparate impact claims of the plaintiff class are those statistics which reflect defendant’s personnel actions taken during the relevant time period covered by this law suit, i. e., for claims under 42 U.S.C. Sec. 1981, on or after October 31, 1973, and for Title VII claims, on or after October 13, 1974. See Neloms v. Southwestern Electric Power Company, 440 F.Supp. 1353 (W.D.La.1977); Schlei and Grossman, supra, (1976) Supp. at 305, 326-327. 3. Inclusion or Exclusion of Pre-Act Hires 57. Likewise, in order to properly analyze certain statistics, employees hired by defendant prior to the effective date of Title VII must be omitted. Exclusion of data relating to pre-Act hires is necessary in some instances to prevent tainting the statistics with data concerning personnel decisions made by defendant prior to the time it was subject to the dictates of Title VII. For example, in EEOC v. United Virginia Bank, supra, an action challenging defendant’s hiring practices, the Court of Appeals determined that in making a comparison of the racial makeup of defendant’s workforce with the workforce as a whole, pre-Act hires should be factored out. 615 F.2d at 150-151. The Fourth Circuit reasoned that if employees hired prior to the effective date of the Act were not excluded, the statistics would reflect hiring decisions made by defendant prior to the time it was subject to Title VII. Similarly, in the case at hand, inclusion of pre-Act hires in plaintiff’s utilization statistics taints these analyses inasmuch as they reflect hiring decisions made by defendant prior to the time in which defendant was subject to Title VII. See Utilization Analysis, Section H.B.9., infra. On the other hand, statistics concerning promotions during the relevant years and service years prior to promotion should include all preAct and post-Act hires inasmuch as all persons within defendant’s employ who were otherwise eligible competed for the available promotions during the years in question; further, these statistics reflect promotional actions taken by defendant during the period relevant to this lawsuit. Finally, in analyzing salary statistics, pre-Act hires should also be excluded. It is undisputed that no Blacks were employed by defendant prior to 1965. Therefore, in comparing employees with the same tenure, there would be no Blacks with whom to compare the salaries of Whites hired before 1965. 4. Defendant’s EEO Training and Affirmative Action Program 58. Prudential has provided its supervisors and other employees with Company-sponsored training programs designed to educate them in areas of equal employment obligations and to impress upon them the Company’s commitment toward equal employment goals. Managers, as well as lower-level supervisors, have been encouraged to attend these courses since at least 1973. Moreover, the evidence demonstrated that when the performance of a supervisor, associate manager or manager is evaluated, his or her success in fulfilling the Company’s equal employment opportunity obligations is considered. 59. In addition, defendant maintains an aggressive affirmative action program by means of which it attempts to increase its minority employees through college recruiting at minority colleges. In addition, each division has goals as to minority representation and promotions. Further, the personnel department reviews disciplinary actions taken by supervisors and managers, and evaluates all terminations as a part of the company’s affirmative action program. The testimony and evidence demonstrated that quality reviews are performed on defendant’s employment interviewers to ensure that their recommendations are supported by legitimate considerations. Lists of promotable employees, including qualified promotable black employees, are maintained by the personnel division, and promotional decisions are policed to be sure that persons on those lists are given fair consideration. The defendant’s written policies on promotion, compensation and termination are carefully designed with these safeguards to ensure that decisions on these matters are based on legitimate factors, not on an employee’s race. See Defendant’s Exhibits 4, 5 and 6. More importantly, the internal monitoring systems implemented by the personnel division are designed to ensure that the written policies are, in fact, followed. 5. Defendant’s Level System 60. Defendant maintains a system of classifying and grading positions in its various departments by use of a level system. Within the level system, there are 300 to 350 job titles. In order to assign a level to each job, personnel in the applicable division write a job description for each position. The personnel department then evaluates the position according to a point system and thereafter classifies the job according to level. Within each level there is a minimum and maximum salary range. Thus, an employee’s salary will depend not only on the level in which his job is classified but also on the number of merit, general or periodic increases that he himself has received. 61. In each of the departments in the administrative section, levels 2 through 12 are classified as clerical positions. Within this group of clerical employees, supervisors occupy levels 7, 8 and above positions, and assistant section supervisors occupy level 5 positions. The level following level 12 is level 20; persons occupying jobs in this and higher levels are classified as management employees. The level steps following level 20 are 28, 60, 64, 77-78, and 84. Level 20 is the associate manager level, while level 60 is the manager level. Level 84, the highest level in defendant’s Southwestern Home Office, is occupied by the company president. Several levels contain only a very few employees who occupy positions that are unique to that level. For example, level 12 consists of field office planning representatives and underwriters; there are only ten to twelve level 12 employees in defendant’s Southwestern Home Office. Similarly, systems analysts constitute level 28, and attorneys and physicians make up levels 77 and 78. 62. Although levels 2 and 3 are entry levels, most college hires enter defendant’s employ in level 8 or 9. However, a college degree is not a requirement for promotion into level 8 or 9, but in order to be hired in at level 8 or 9, one must have a college degree or equivalent training and experience. 63. Within the lower levels, the ordinary line of progression is from one level into the level immediately higher. However, because of the level classification of several jobs, the- lines of progression may vary. For example, persons selected for promotion to level 12 are usually drawn from level 10. Similarly, level 11 promotions are generally chosen from level 9, and level 20 promotions from level 11. Associate managers (level 20) are most frequently promoted to level 60 manager positions, thus bypassing level 28. Promotions to levels above 28 require approval from corporate headquarters, while promotions to lower levels are approved through the local office. 6. Defendant’s Promotion Policies 64. The department manager and the supervisor will often have the first information concerning a vacancy in their department. Because it is the stated policy of Prudential to promote from within, managers and supervisors will first look within their own division to ascertain the eligible candidates for promotion, or, if necessary, to transfer from another division. If the position cannot be filled by these methods, the personnel department is consulted about hiring from outside. Thus, if it is necessary to go outside the company to fill the vacancy, personnel will accomplish the initial screening and present to the manager and supervisors the names of persons who are qualified to fill the position. If, on the other hand, the selection is to be made within the department or section, selection will be made from the pool of available candidates as determined by the managers, supervisors and personnel; defendant has no system for posting job vacancies to solicit applications for promotion from within. 65. In order to select the employee who is to be promoted, each department will maintain an inventory of persons eligible for promotion, which is compiled according to individual developmental guidelines. Supervisors in the department are also asked to suggest candidates for promotion. By means of a consultation between the manager and supervisors, the candidates are reviewed on the basis of their latest appraisal reports, which are maintained in the various departments, as well as the employees’ disability records and quarterly quality reviews. Additional factors which are part of the overall picture in determining eligibility for promotion are the candidate’s attendance, job performa