Full opinion text
MEMORANDUM OPINION McMILLAN, District Judge. This action was tried on August 15-17 and 20-22, 1979, upon allegations of the plaintiff, the plaintiff intervenors (hereinafter collectively referred to as “plaintiffs”) and the class of employees represented by plaintiffs that the defendants had engaged in policies and practices in violation of Title VII of the Civil Rights Act of 1964, (as amended) 42 U.S.C. § 2000e et seq. (“Title VII”), 42 U.S.C. § 1981 (“§ 1981”) and the Fifth Amendment to the Constitution of the United States and that the plaintiffs and class members had been denied employ-, ment opportunities as a result of the racially discriminatory practices of the defendants. Plaintiffs seek injunctive relief including monetary compensation to remedy the claimed discrimination and to provide specific redress for each individual who has suffered as a result of the defendants’ alleged discriminatory practices. Based on the evidence, the Court enters the following findings of fact and conclusions of law: FINDINGS OF FACT A. Parties 1. Plaintiffs herein, Napoleon Chisholm, H. C. Rushing, William J. McCombs, C. A. Rickett, Milton J. Yongue, and James F. Lee, are black citizens of the United States residing in Mecklenburg County, North Carolina, who, at all times pertinent, have been employees of the United States Post Office and the United States Postal Service. 2. Plaintiffs have brought this action as a class action under Rule 23, Federal Rules of Civil Procedure. On May 29, 1975 an order was entered certifying this case as a class action consisting of: All black persons who are employed and who might be employed by the defendants at the Charlotte, Mecklenburg County, North Carolina branch of the United States Postal Service and who are or have been limited, classified, restricted, discharged, excluded or discriminated against by the defendants in ways which deprive or tend to deprive them of employment opportunities and otherwise affect their status as employees or applicants for employment or promotion because of their race or color. The above class definition was amended on July 17, 1979, and the class was redefined as follows: ... all black persons who have been employed by the defendants at the Charlotte, Mecklenburg County, North Carolina facilities of the United States Postal Service (or the United States Post Office) at any time from March 24, 1970 to the date of this Order who are or have been limited, classified, restricted, discharged, excluded or discriminated against by the defendants in ways which deprive them of employment opportunities and otherwise affect their status as employees or with respect to promotion or pay because of their race or color. Notice to potential class members was effected prior to trial by having a copy of this Court’s July 17, 1979 class action Order posted on all bulletin boards of defendants’ Mecklenburg County, North Carolina facilities. The evidence at the trial of this case involved facts relating to a pattern of racial discrimination engaged in by the defendants and certain individual claims of certain of the plaintiffs and class members who testified at the trial. As set forth hereafter, an opportunity will be given to all class members to present their individual claims of discrimination at some later date. 3. The defendant United States Postal Service (hereinafter “USPS”) is a quasi-governmental corporation established by Congress and is the successor to the United States Post Office. The business of USPS is mail. This case involves the facilities of USPS located in Mecklenburg County, North Carolina. USPS is an employer within the meaning of Title VII (as amended in 1972). 4. Defendant W.A. Shaw, as of the date this action was filed, was the officer in charge of the Charlotte, Mecklenburg County, North Carolina facilities of USPS. Shaw, and his predecessors and successors, were responsible for the overall operations of the Charlotte branch of the USPS, including the promotion of all personnel and the selection of supervisors and upper level management personnel. 5. Defendant E. T. Klassen, as of the date this action was filed, was the Postmaster General of the United States and the chief executive officer of USPS. Klassen, and his predecessors and successors, were responsible for the overall operations of USPS, including the promotion and other employment procedures and policies of USPS. 6. Defendant Michael R. Greeson, as of the date this action was filed, was the head of the personnel department of the Charlotte branch of USPS and was responsible for the day-to-day personnel decisions of that office, including the decisions involving promotions and the selection of supervisory and upper level management personnel. B. Administrative Proceedings 7. On March 24, 1972, after an inconclusive informal proceeding, plaintiff Chisholm filed a formal administrative complaint of racial discrimination pursuant to the then existing U.S. Civil Service Commission regulations, 5 C.F.R. Part 713. As was true throughout the entire administrative process Chisholm was not represented by counsel. The complaint stated that the “specific action or situation complained of” was: 3. (a) On March 4, 1972, the position of Finance Examiner, level 9 was filled by Mr. Robert L. Wallace and on March 13, 1972, the position of Budget Assistant, level 8 was filled by Mr. L. B. Holland; I was denied an equal opportunity to be considered for the above positions. (b) That such denial of equal opportunity for black employees in relation to promotion in the U. S. Postal Service, Charlotte, N.C. is a continuing discriminatory practice. In his formal complaint, Chisholm gave as “the date of the alleged act of discrimination,” “[sjpecifically: March 4, 1972, and March 13, 1972” and “[gjenerally: 1960 through present time.” The following were set forth in the letter of complaint as Chisholm’s reasons that there had been discrimination against blacks as a class as well as against Chisholm individually: 7. In being denied the equal opportunity to be considered for the aforementioned positions, I was informed by the Personnel Office that I did not meet the specialized experience required, in that, at least one year of specialized experience must have been at a level of difficulty comparable to not more than 3 levels and 2 levels below the position to be filled, 9 and 8 respectfully [sic]. Therefore, since I am a level 5 carrier I was denied the opportunity to compete for the positions. However, in subsequent advertisements with the same stipulation as above Mr. C. C. Claud and Mr. Leonard W. Kerr, both level 5 and both white employees were granted an opportunity to compete for level 8 positions on March 10, 1972, at 10:30 a. m. and 11:00 a. m., respectfully [sic]. On March 17, 1972, Mr. Jack R. Polk, a white employee, level 4 was granted an opportunity to compete for a level 8 position advertised with the same stipulation. Therefore, I contend that the aforementioned stipulation is a manipulated tool of management whereby discrimination in general is practiced by management against the black employees and in this case specifically against me. In that I firmly believe that I am the more qualified employee. In regards 3-b above: because of the lack of the accessibility to record examination the below contentions are not based on specific statistics, however they are in my opinion, statistically inferred based on 12 years of competent observation — stated within a 95% to 99% competence level. (a) That less than 1% of the total supervisory staff, level 7 and above is black. (b) That the total number of black supervisors appointed since 1960 is less than Vfe of 1% of the total number of white supervisors appointed since 1960. (c) That the total number of times that a black supervisor has chaired a position on the Promotion Advisory Board is less than Vi of 1% of the total number of times that it has convened. (d) That the white employee has been consistently “detailed” to the open positions and allowed to work in the position on an average of 1 year before it goes up for bid, thus giving the “detailed” employee a definite advantage over any other applicant. (e) That the “detailed” employee gets the position regardless of the qualification of any applicant competing against him. (f) That less than Vi of 1% if any, black employees, are “detailed” to supervisory and other staff positions. As a result, it is through the “detailed process” which is unadvertised, and the convening of a biased Promotion Advisory Board that willful and consistent discriminatory practices in promotions against the black employee, has and is prevailing in the Charlotte, N. C. Postal Service. This Court has previously found that, “[i]t is undisputed that ... in his formal complaint, the plaintiff raised broad class-wide issues of discrimination.” Memorandum Opinion filed May 29, 1975. 8. As required by U. S. Civil Service Commission regulations, an investigation of Chisholm’s complaint was conducted by an investigator employed by USPS. While the USPS investigation focused only on the specific denial of two promotions, raised by Chisholm, the administrative record contains various minority census reports and other statistical compilations which show that few blacks had obtained higher level USPS jobs. On the basis of a review of the investigator’s report and considering only the denial of Mr. Chisholm’s applications for promotion, the regional USPS office of Equal Employment Compliance issued on August 28, 1972, a proposed decision that the “allegation of discrimination due to your race is not supported; therefore, we propose to dispose of your complaint of discrimination as not being supported”. Chisholm was informed that he could request an administrative hearing if dissatisfied with the proposed decision, and he did so. A hearing was held September 21, 1972 at which time evidence of class-wide discrimination was presented as well as evidence concerning the specific promotions which Chisholm claimed he had been denied. 9. In his subsequent decision, the hearing examiner considered only the question “[has] the complainant been improperly denied consideration for promotion?”. The examiner found “that the complainant was improperly denied consideration for the position of Finance Examiner, but that he was not improperly denied consideration for the position of Budget Assistant.” He concluded that, “[T]he preponderance of the evidence supports the allegation of discrimination because of race”. The hearing examiner recommended the following relief: Since the evidence shows an inconsistency in the application of the qualifications standards by the Personnel Office of the Charlotte Post Office, it is recommended that for at least one year, all determinations of eligibility and/or ineligibility of candidates for positions in the Charlotte Post Office be audited by the Regional Office before the lists of eligibles are referred to the selecting official. It is also recommended that the complainant be given priority consideration for promotion to the first available position for which he applies in which he meets the minimum qualifications. 10. On December 29, 1972, the national office of USPS Equal Employment Compliance accepted the examiner’s proposed findings, recommended decisions and recommended action in a short letter of final decision. The letter also did not address Chisholm’s allegations of class-wide discrimination. Chisholm was given the option of appealing to the Board of Appeals and Review of the U. S. Civil Service Commission or filing a civil action pursuant to Title VII; he chose the former. Chisholm’s January 14, 1973, letter of appeal stated: After careful consideration of the various factors leading to his decision, I have concluded that I cannot and will not accept his decision. Therefore, on behalf of all of the minority employees in the Charlotte, N. C. Post Office and myself I am appealing to you for equitable relief from the practices of discrimination against the minority employees by management in the Charlotte, N. C. Post Office. Among his reasons for appeal were: First, “the decision leaves intack [sic] an unjustified Promotion Appeals Board which has only one black supervisor on it; and no female members.” Second, “[t]he decision makes no effort to correct the discrimination practices of management via use of the ‘detail’ process”. The appeal went on: Note: that in the Hearing management made no effort to defend their method of “detailed” promotions whereas it was pointed out by me and testimony given as to just how this is done. (1) the opening to which they can detail an employee is not made known to the entire work force, therefore they hand pick a “buddy,” detail him to the position and allow him to work it for a considerable length of time, “normally 6 months to a year and a half,” then, they place the position up for bid as if it just came open. Added to that is the fact that they load the Promotion Advisory Board with two people who usually are instrumental in detailing their “buddy” employee. As a result their “buddy” gets the promotion. Now place yourself on that Promotion Board as the third member and you are reviewing an applicant thats [sic] been working the position in question for at least a year, and it has been prior assured that there is no reported discrepancy in his work performance. How would you vote? I am therefore requesting that you direct the Charlotte Post Office to make known to all employees of any and all positions to which an employee can be “detailed” prior to the filling of the position. And that the Charlotte Post Office allow any and all employees ample time to express their interest and qualification for the position prior to filling the “detailed” position. Your attention is directed to the fact that when an employee is detailed to a higher level position he is paid accordingly and it’s ultimately the same affect as a promotion. 11. Thereafter on May 29, 1973, the final agency decision with respect to Mr. Chisholm’s complaint was affirmed except for reimposing the required one year auditing period (which had been eliminated by the national office of USPS). The decision expressly stated that class-wide discrimination would not be addressed. This Court has previously found and it is undisputed that “[d]espite the clear language in- Chisholm’s formal complaint, claiming pervasive racial discrimination . . . the administrative agency chose to ‘interpret’ Chisholm’s complaint as raising the limited claim of discrimination in the Finance Examiner and Budget Assistant jobs” only. As “the decision of the Board [was] final and there [was] no further right of administrative appeal”, this lawsuit was filed on June 27, 1973. C. Judicial Proceedings 12. Following the institution of this action, motions to amend the complaint (to add a Fifth Amendment claim) and to intervene were filed and allowed. Defendants’ motions to dismiss were denied. On May 29,1975, this Court entered a Memorandum Opinion and a separate Order allowing, inter alia, the case to proceed as a class action (and as a trial de novo) and allowing an interlocutory appeal. Leave to appeal was granted by the United States Court of Appeals for the Fourth Circuit. After full briefing and intervening appellate decisions, the defendants’ appeal was voluntarily dismissed on August 3, 1977. 13. Thereafter, the parties conducted extensive discovery with respect to the class and individual claims. Trial was held August 15-17 and 20-22,1979. At the close of trial, the Court directed the parties to meet and attempt to settle the case. Settlement efforts proved fruitless and, on June 23, 1980, this Court entered a Memorandum of Decision setting forth, in general terms, its findings with respect to certain issues raised in the case. The Court having now reviewed the entire record, more detailed and complete findings are hereafter set forth. D. General Organization of USPS in Mecklenburg County 14. The Charlotte Post Office is the USPS installation in the Charlotte, Mecklenburg County, North Carolina metropolitan area, and consists of about a dozen or more stations within the city limits of Charlotte (the number of stations varied over time), including the large relatively new General Mail Facility, and two or more branches outside the city limits. The Charlotte Post Office is the only federal employer of appreciable size in the Charlotte area and serves the largest metropolitan area in North Carolina. In May 1972, shortly after the filing of Chisholm’s administrative complaint, about 1400 plus persons (including rural carriers) were employed by the Charlotte Post Office. In addition to the Charlotte Post Office, the USPS maintains several other facilities in Mecklenburg County including offices in Pineville, Matthews and Davidson. 15. The Charlotte Post Office and the territory it serves, including Mecklenburg County, are within the Charlotte Sectional Center, which consists of a three-countywide corridor of the western part of the State of North Carolina from Virginia to Chester, South Carolina. The Charlotte Sectional Center is comprised of two first-class post offices, the Charlotte Post Office and the Hickory Post Office, and approximately 202 associate offices. The Charlotte Sectional Center is itself one of six sectional centers in the Charlotte District or Carolinas District, which covers North and South Carolina. 16. The same management officials are in charge of the operation of both the Charlotte Post Office and the larger Charlotte Sectional Center. Thus, the Charlotte Sectional Center Manager or Postmaster has overall responsibility for the operation of the Charlotte Post Office (and the other post offices) in Mecklenburg County, North Carolina. 17. Within the Charlotte Post Office (and Charlotte Sectional Center) there are four main organizational divisions, Mail Processing, Customer Services, Finance (or Support) and Employment and Labor Relations which perform the following major functions: (a) Mail processing division’s function is mail distribution, mail processing, and dispatch activities, and plant maintenance throughout the Charlotte Post Office; (b) Customer Services division’s function is all operational and customer services activities, including dispatch, delivery and collection; retailing, window services and related activities, such as vehicle maintenance and operations, throughout the Charlotte Post Office; (c) Finance (or Support) division’s function is providing finance, budget administration, data systems information, accounting and costing, auditing and administrative services; and (d) Employee and Labor Relations division’s function is administration of personnel policies and practices. There is substantial movement by employees from one functional area to another by means of transfer, promotion and temporary assignment. Employees by working in various functional areas are provided experiences which may be helpful when promotional decisions are made. 18. Mail processing is an operational division, and employees are assigned to it in work locations throughout the Charlotte Post Office, notably the General Mail Facility, which has three tours (or shifts), covering 24 hours, the parcel post annex, and airport mail facility. Customer Services is also an operational division with work locations throughout the Charlotte Post Office. The Finance and Employee Relations offices essentially provide support services and have far fewer employees; both offices are located in the General Mail Facility. 19. Within functional divisions, managers and supervisors administer operational and personnel policies and practices in tours or sections of larger facilities, such as the General Mail Facility, parcel post annex and airport mail facility and in the smaller branches and stations. Line supervisors at larger facilities or superintendents of station operations at branches or stations initiate personnel recommendations or requests, which then pass on to managers and functional Sectional Center Directors, and the Director, Employment and Labor Relations and the Postmaster for final approval. E. Personnel Organization 20. Employees are normally hired into various functional craft positions of clerk, city carrier, vehicle operator, vehicle maintenance, mail handler and rural mail carrier, each of which positions has a separate seniority roster and collective bargaining agreement. There are collective bargaining agreements with unions representing rural letter carriers, mail handlers, letter carriers, and a group including clerks, motor vehicle employees, maintenance employees and special delivery messengers. 21. Craft lower level vacancies are filled by a bidding system principally based on craft seniority pursuant to collective bargaining agreements. Craft jobs are normally filled by the “senior qualified” employee. At times material to this lawsuit, craft employees have been designated by Postal Field Service (PFS) and subsequently by the Postal Service (PS) pay levels. Each job is assigned a pay level. Clerks are generally level 5 and 6 employees; carriers are generally at level 5; and journeyman mail handlers are normally level 4. Each level has a number of pay steps through which employees advance by length of service. The higher the level and step the higher the pay, although pay at the upper steps of a lower level generally overlaps pay at the lower step of a higher level. 22. In 1973, seniority lists were maintained at the Charlotte Post Office (including part-time employees) in the following categories and with the following racial breakdown: Category White Employees Black Employees Total Employees Supervisory 96 9 105 Carrier 341 85 426 Rural Carrier 22 0 22 Clerk 535 207 742 Special Del. Messenger 12 0 12 Mail Handler 33 70 103 Postal Assistant 7 0 7 Motor Vehicle Service Vehicle Op. 13 23 36 Vehicle Maintenance Service Supervisory 6 0 6 Vehicle Maintenance 17 2 19 Building & Maintenance Service Supervisory 6 Building & Maintenance Service 22 29 51 23. Higher level positions start with level 7 and above and include initial level supervisory positions which have line responsibility for supervising craft employees, and nonsupervisory technical positions such as personnel, accounting, EEO specialist and nurse positions. The bulk of higher level positions are supervisory employees. 24. Supervisory vacancies are usually filled by regular craft employees of the Charlotte Post Office who apply through competitive procedures, which until 1976 included a written examination such as the general initial level supervisory OS 100 examination for certain designated positions. Initial level Supervisory positions were generally designated PS level 7, 8, or 9, until March 1973, when initial level supervisory positions were redesignated Postal Management Schedule, or PMS, levels 15, 16, and 17, with no immediate change in the level of pay. 25. Management positions are defined as those in which the incumbent normally supervises supervisors instead of craft employees. Until 1973, management level supervisory positions were designated PS 10 and above. After 1973, management level supervisory positions were designated Postal Executive Schedule, or PES, level 18 and above. PES management vacancies are circulated throughout the region of which the Charlotte Post Office is a part and sometimes even nationwide. They may also be filled in a non-competitive process by certain employees who have been excessed from other areas. 26. Generally speaking, promotion to supervisory and management jobs is an “in-house” process. USPS in Charlotte utilizes an internal labor market for upper level jobs. New supervisors are rarely hired directly into the USPS, although certain training programs have been initiated from time-to-time to obtain supervisors from outside the system. Promotions are progressive in nature. One normally must first be an initial level supervisor before obtaining higher level supervisory jobs. For example, the Charlotte Postmaster at the time of trial, O. B. Sloan, started his postal career in a craft job. Similarly, most of the other individuals who obtained higher level positions (levels 7 and above) began their careers as clerks, carriers, or mailhandlers. F. Workforce Statistics 27. USPS has maintained periodic records demonstrating the racial composition of its workforce by job level. The racial breakdown for various periods during the years 1962-1973 are as follows: (a) EMPLOYEES BY LEVEL AND RACE, 1962 Total' Employees Grade Level White Employees Black Employees Other Employees 2 1 0 2 13 2 0 13 96 3 62 34 684 4 589 94 45 5 39 6 12 6 11 1 41 7 40 1 16 8 16 0 14 9 14 0 6 10 6 0 1 11 1 0 2 12 2 0 1 13 1 0 1 14 1 0 1 15 1 0 Subtotal 1-6 701 150 852 783 ~935~ TOTAL 151 Subtotal 7-15 82 1 83 Source: Survey of Federal Civilian Employment of Selected Minority Groups as of 6-22-62, excluding 9 white rural carriers. (b) EMPLOYERS BY LEVEL AND RACE, 1968 Grade Level White Employees Black Employees Other Employees Total Employees 1 . 0 0 0 0 2 0 10 0 10 3 0 19 0 19 4 32 74 0 106 5 813 206 1 1020 6 103 14 0 117 7 20 1 0 21 8 40 1 0 41 9 10 2 0 12 10 17 0 0 17 11 9 0 0 9 12 3 0 0 3 13 2 0 0 2 14 2 1 0 3 15 1 0 0 1 16 0 0 0 0 17 1 0 0 1 Subtotal 1-6 948 323 1272 Subtotal 7-17 105 5 110 TOTAL _ 1053 328 1382 Source: Field Report on EEO Program for Progress,, dated 8-29-68 excluding rural carriers. (c) EMPLOYEES BY LEVEL AND RACE, 1969 Grade Level White Employees Black Employees Other Employees Total Employees 1 0 25 0 25 2 0 5 0 5 3 0 18 0 18 4 28 76 0 104 5 824 222 1 1047 6 125 15 0 140 7 15 1 0 16 8 43 1 0 44 9 10 2 0 12 10 17 0 0 17 11 9 0 0 9 12 3 0 0 3 13 3 0 0 3 14 2 1 0 3 15 1 0 0 1 16 0 0 0 0 17 1 0 0 1 Subtotal 1-6 977 361 1339 Subtotal 7-17 104 5 109 366 TOTAL 1081" 1448 Source: Field Report on EEO Program for Progress, dated 7-7-69, excluding rural carriers. (d) EMPLOYEES BY LEVEL AND RACE, 1970 Grade Level White Employees Black Employees Other Employees Total Employees 1 0 0 0 0 2 1 4 0 5 3 1 17 0 18 4 32 78 1 111 5 757 244 2 1003 6 142 20 0 162 7 13 1 0 14 8 47 2 0 49 9 12 2 0 14 10 19 0 0 19 11 9 0 0 9 12 3 0 0 3 13 3 0 0 3 14 2 0 0 2 15 1 1 0 2 16 0 0 0 0 17 1 0 0 1 Subtotal 1-6 933 363 1299 Subtotal 7-17 110 6 116 TMT 1415' TOTAL 369 Source: Field Report on EEO Program for Progress, dated 4-14-70, Excluding rural carriers. (e) EMPLOYEES BY LEVEL AND RACE, 1971 Grade Level White Employees Black Employees Other Employees Total Employees 1 0 0 0 0 2 1 4 0 5 3 1 15 0 16 4 33 84 0 117 5 741 244 1 986 6 154 33 0 187 7 11 4 0 15 8 42 4 0 46 9 14 2 0 16 10 17 0 0 17 11 9 0 0 9 12 4 0 0 4 13 3 0 0 3 14 2 0 0 2 15 1 0 0 1 16 0 0 0 0 17 1 0 0 1 Subtotal 1-6 930 380 1311 Subtotal 7-17 104 10 114 TOTAL 1034 390 1425 Source: Field Report on EEO program for Progress, dated 6-4-71, excluding rural carriers. (f) EMPLOYEES BY LEVEL AND RACE, 1972 Grade Level White Employees Black Employees Other Employees Total Employees 1 0 0 0 0 2 1 4 0 5 3 1 17 0 18 4 37 89 0 126 5 727 270 1 998 6 156 39 0 195 7 12 4 0 16 8 46 4 0 50 9 16 1 0 17 10 17 0 0 17 11 11 1 0 12 12 4 0 0 4 13 3 0 0 3 14 3 0 0 3 15 1 0 0 1 16 0 0 0 0 17 1 0 0 1 Subtotal 1-6 922 419 1342 Subtotal 7-17 114 10 124 TOTAL 1036 429 1466 Source: EEO Program for Progress Report, dated 5-10-72, excluding rural carriers. (g) EMPLOYEES BY LEVEL AND RACE, 1973 Grade Level White Employees Black Employees Other Employees Total Employees 1 0 1 0 1 2 2 2 0 4 3 2 15 0 17 4 76 32 0 108 5 67 92 0 159 6 780 257 0 1037 7 16 4 0 20 8 48 7 0 55 9 21 1 0 22 10 15 0 0 15 11 11 1 0 12 12 5 0 0 5 13 1 0 0 5 14 3 0 0 3 15 3 0 0 3 16 0 0 0 0 17 0 0 0 0 Subtotal 1-6 927 399 1326 Subtotal 7-17 123 13 136 TOTAL 1050 412 0 1462 28. As of 1975, the breakdown of USPS supervisors in the Charlotte Post Office was as follows: Source: Exhibit 3 to Defendants' Answers To Plaintiffs' First Interrogatories, Seniority Lists from July 1973, excluding rural carriers and P.L. 121 appointments. (h) The percentage of blacks in the workforce has remained relatively constant, with a 30% black work force, during the 1970's. SUPERVISORY EMP10YEES BY LEVEL AND RACE, 1975 Grade Level White Employees Black Employees Other Employees Total Employees 13 2 1 0 3 14 6 1 0 7 15 36 9 1 46 16 7 2 0 9 17 6 1 0 7 18 15 0 0 15 19 3 1 0 4 20 6 0 0 6 21 3 0 0 3 22 1 1 0 2 23 2 0 0 2 24 2 0 0 2 27 1 0 0 1 TOTAL 90 16 107 Source: Admin. File, John A. Pettice, Complaint of October 18, 1974. G. Procedures For Selection of Initial Level Supervisors and Upper Level Employees 29. USPS has used various methods to select employees for upper level (generally level 7 and above) positions. A number of jobs level 7 and above including, for example, most higher level jobs in Finance and Personnel have been filled without requiring passage of any written tests. Such upper level jobs are, at least in theory, filled by the “best qualified” employee as more fully discussed below. However, while the passage of the pertinent written tests is not required for such jobs, test scores generally are provided to the selecting authority and in some cases, passage of the initial level supervisor exam (discussed in detail below) could be utilized as a substitute for required job experience. Other upper level jobs (referred to herein as “initial level supervisory positions”) have at various times been filled only by those persons who scored as required on the then existing written supervisory exams. 30. The highest level supervisory and management jobs, generally those above level 15 on the present scale, do not have any additional written test requirements. Of course, since initial level supervisors have usually passed the pertinent tests, failure to get by the testing requirement precludes one from both initial level and higher positions. 31. As a practical matter, few if any individuals have been promoted to any upper level jobs without making a satisfactory test score. This fact is true with respect to jobs where a successful test result is not required but may be used to substitute for experience or otherwise as an added credential. For example, white employees L. B. Holland, E. L. Robinson, James F. Brawley, Richard C. Warfel and Charles Morgan received passing scores on the pertinent supervisor exams and were later promoted to upper level jobs where such test success was not a formal requirement. H. Use of the Initial Level Supervisory Examinations 32. Until October 1976, a USPS employee was required to take a written examination in order to be eligible to apply for and be considered for initial level supervisory positions. The examination used to establish registers or lists of employees eligible to fill most initial level supervisory positions was the “postal operations” or “postal branch” 100 examination for initial level supervisory positions in all crafts. 33. The initial level supervisory 100 examination was described as an examination consisting of technical and managerial abilities, multiple-choice questions in the areas of Customer Service, Mail Processing, and collection and delivery of mail. 34. In 1974, the following positions were covered by the initial level supervisory 100 examination: Asst. Supt., Window Services (A) Asst. Supt., Window Services (B) Asst, to Supt., Scheme Examinations Asst, to Supt., Mail Office Window Svcs. Clerk-in-Charge, Transfer Office Foreman Airmail Transfer Office Foreman, Bulk Mails Foreman, Collections Foreman, Collections & Delivery Foreman, Delivery Foreman, Inter. Airmail Record Units Foreman, Mails Foreman of Mails, Carrier Station Foreman, Parcel Post, Delivery and Collection Foreman, Platform Operations Foreman, Registry Foreman, Scheme Examinations Foreman, Special Delivery and Collections Foreman, Special Delivery and Mails Foreman, Special Delivery Services Foreman, Station Operations Foreman, Undeliverable Mail Foreman, Window Services Information Research Officer Manager, Detached Mails Unit (A) Manager, Station or Branch Ops. (A) Manager, Station or Branch Ops. (AA) Route Examiner Station, Br. Foreman, Window and Bx. Svcs. Superintendent of Mails Superintendent, Registry (A) Superintendent, Transfer Office (A) Superintendent, Window Services (A) Superintendent, Window Services (B) Supervisor, Detached Mail Unit Supervisor, Route Examiners Supervisor, Scheme Examiners (A) Supervisor, Scheme Examiners (B) Supervisor, Schemes and Routing Tour Foreman, Mails Tour Foreman, Transfer Office Tour Foreman, Truck Terminal. Transportation Supervisor Superintendent, Postal Opns. Administrative Assistant (A) Assistant Manager Office Staff, Operations Foreman, Office Services Foreman, Office Staff, Operations Office Manager, Postmaster’s Office Office Staff Supervisor Superintendent Office Services (A) Superintendent Office Services (B) Superintendent Postmaster’s Office Staff Supervisor Administrative Services Supervisor Office Services (A) 35. Separate examinations were used to establish separate registers to fill initial level supervisory positions in the maintenance (custodial) branch or area, building maintenance service branch and motor vehicle branch (operations and maintenance). As set forth above, promotions to certain higher level positions in support, specialist or technical areas did not formally require passing any initial level supervisory examination. Such positions included Safety Management; Personnel; Personnel Management; Post Office Accounting; Nonprofessional Clerical, Technical, Administrative and Supervisory Accounting; Budget and Accounting; Financial Management; Professional Accountant and Accountant. 36. The initial level 100 supervisory examinations were prepared by the national testing center of USPS and its predecessor organizations. The examinations were requested and administered by a local post office such as the Charlotte Post Office periodically in order to reopen or replace existing registers of eligible employees. 37. Since 1968, several versions of the 100 initial level supervisory examination have been administered and used to establish registers of eligible employees at the Charlotte Post Office: a. The 1968 100 initial level supervisory examination was administered in late 1968 and the register of eligible employees became effective in February 1969. b. The 1970 100 examination was administered on September 16, 1970, and October 17, 1970. The existing register based on 1968 examination was cancelled effective February 8, 1971, and a new register based on the 1970 examination became effective February 18, 1971. c. A reopened 100 examination was administered November 24, 1973, December 1,1973, and January 26,1974, in order to reopen the register to permit newer employees an opportunity to become eligible on the existing supervisory register based on the original 1970 examination. A register based on the 1970 reopened examination was in effect from January 24, 1974, until September 1974. d. The 100 examination was administered in March and April 1974, in order to establish a new supervisory register, which went into effect September 13, 1974. The register based on the 1974 100 examination remained in effect until October 1976. e. The supervisory register based on the 1974 examination was replaced in October 1976, by a register which was not based on an examination but was developed without examination and by a rating of employees by their supervisors in categories A, B and C. 38. The iriitial level supervisory 100 register of eligible employees was used for at least the following purposes: a. Only employees on the initial level supervisory register were eligible to be detailed to initial level supervisory positions in order to gain experience and learn supervisory skills. b. Only employees on the initial level supervisory register were entitled to be considered for and selected to initial level supervisory positions. c. An employee’s eligibility on the initial level supervisory register was used by Charlotte Post Office Management as a criteria for detailing and selecting to non-initial level supervisory upper level positions. d. Employees on the initial level supervisory register were in fact often selected for non-initial level supervisory positions such as group leader, seven PSDS Technician positions and jobs in Finance, Personnel and other functions where test passage was not an absolute prerequisite. e. Successful completion of the test would allow one applying for a job for which the test was not required to use test results as a substitute for otherwise required (at least in theory) experience. f. Since one’s test scores were often provided to the Promotion Advisory Board which was considering the candidates for a given upper level vacancy, such Boards could use this additional information as each Board deemed appropriate. 39. For all the above reasons, passage of the supervisory exam was considered to be (and was) a definite plus for any employee. Successful test completion gave an employee the chance to obtain specific jobs and, in addition, the opportunity to obtain different and important work experiences. I. The 1968 and 1970 Examinations 40. A Charlotte Post Office employee had to meet the following participation requirements in order to be able to take the 1968 or 1970 initial level supervisory examination: a. Employment at the Charlotte Post Office; b. Career status, i. e., full-time register or part-time flexible, at level PS-4 or higher (except part-time flexible rural carriers); c. At least 4 years of career service in the clerk, letter carrier, mail handler, rural carrier or special delivery messenger crafts (except that non-post office branch employees such as motor vehicle or maintenance (custodial) employees were required to have at least 5 years of service in the above crafts); d. In addition, PS-4 employees were required to have first passed the clerk-carrier examination. 41. ■ A Charlotte Post Office employee who took the 1968 or 1970 examination was put on the initial level supervisory register by attaining a cutoff score of 70%, /. e., a percentile score indicating that an employee scored better than 70% of the test takers on a nationwide basis. No evidence has been offered to justify this cutoff score. 42. While information is unavailable concerning the numbers of employees who applied to take the 1968 examination, the following information is available concerning Charlotte Post Office applicants who passed the examination: a. The names of 61 white employees and 5 black employees were placed on the 1968 Initial Level Supervisory Examination register in February 1969. b. In April 1970, the 1968 examination supervisory register was then composed of 51 white employees and 4 black employees. c. From 1968 to June, 1969, some 21 persons, all white, were promoted to Levels 7 and 8. See Findings 78(e) and (f). 43. The following were the results of the 1970 examination: White Employees Black Employees Other Employees Total Employees Applicants 187 55 2 244* Eligible 83 10 0 93 Passing Rate 44.4% 18.2% 38.1% *Does not include J. L. Fowler, M. W. McCarter and J. C. Garver, races unknown. 44. The different passing rate for white and black employees on the 1970 examination was statistically significant based on a chi-square analysis, and the result could not have occurred by chance more than one time in a thousand. It is probable almost to the point of certainty that something other than the ability the test is supposed to measure is responsible for the racially differential results. Under the rule of thumb developed by federal agencies, known as “the four-fifths rule”, the results on the 1970 examination constitute a serious discrepancy and had adverse impact on black employees. 45. USPS did not present any evidence that the 1970 examination was valid. No study, professional or otherwise, was advanced to justify the use of the 70% cutoff score selected for the 1970 exam. 46. Based on a nationwide study (as opposed to Charlotte-only data) of the results of the 1968 exam, which found overall adverse impact nationwide, it is highly probable that there was adverse impact on the black employees of USPS at the Charlotte Post Office with respect to the 1968 examination. USPS presented no evidence that the 1968 exam was valid, and no study, professional or otherwise, was presented to justify the 70% cutoff score selected for the 1968 test. 47. The standing of an employee who passed the 1968 or 1970 examination on the initial level supervisory register was determined by a rank order based on the employee’s examination score and a service credit calculated by adding .5 point for each full year of postal service (including certain military service) not to exceed 27 years. 48. The average (mean) service credit for black employees who passed the 1970 examination was 5.15 and the average (mean) service audit for whites was 6.01. While the use of such service credits might have compounded the adverse impact of the use of the test scores to some extent, the difference between the two means is not statistically significant and the addition of service points to the test scores did not affect the adverse impact of the tests on blacks. USPS offered no study or theory justifying the use of service credits. 49. The supervisory register based on the 1968 examination was in effect from February 1969 through January 1974 for purposes of selection for detailing or promotion to initial level supervisory and other upper level positions. 50. From July 1965 until 1972, only available employees within the top 15 percent of the 1968 and 1970 examination initial level supervisory register at the time of the filling of an initial level supervisory position were within the “zone of consideration” and could be considered for promotion by a Promotion Advisory Board. To the extent practicable, employees detailed to initial level supervisory positions were required to be selected from those within the zone of consideration at the time of filling such detail. 51. In April 1970, 51 white employees and 4 black employees were on the initial level supervisory register based on the 1968 examination, and 9 white employees and no black employees were within the zone of consideration for initial level supervisory positions. In 1971, 84 white employees and 10 black employees were on the initial level supervisory register based on the 1970 ex-animation, and 14 white employees and one black employee were within the zone of consideration for initial level supervisory positions. 52. The effect of the use of the zone of consideration on the adverse impact of the 1968 and 1970 examinations is that there is even less likelihood that any black employees would be detailed, selected for promotion or gain the other benefits available to those who were successful on the test, in light of blacks’ significantly lower scores. No study was presented by USPS to justify the use of the zone of consideration. 53. From July 1972, to June 1973, the zone of consideration was modified, and available employees on the 1970 examination initial level supervisory register were considered regardless of their score, but employees had to be considered in the order their names appeared on the register. The effect of this change, from zone of consideration to rank order consideration, on the adverse impact of the 1968 and 1970 examinations was virtually none because black employees were concentrated at the lower end of the ranking. No study was presented by USPS to justify considering employees in the order their names appeared op the register. 54. The 1970 supervisory register was amended July 10,1973, to include employees with scores 55% and above. The amended register was composed of 110 white employees and 9 black employees. This change, however, did not alleviate the adverse impact of the 1970 examination on black employees. No study was presented justifying the 55% cutoff since used after July 1973. J. The 1970 Reopened Examination (Administered in 1973 and 1974) 55. In order to take the 1970 reopened PS 100 initial level supervisory examination, a Charlotte Post Office employee had to meet the following participation requirements: a. Employment at the Charlotte Post Office; b. Career status, i. e., full-time regular or part-time flexible, at level PS-4 or higher (except part-time flexible rural carriers); c. At least 3 years of career service in the clerk, letter carrier, mail handler, rural carrier, special delivery messenger crafts (except that non-post office branch employees such as motor vehicle or maintenance (custodial) employees were required to have at least 5 years of service in the above crafts); d. In addition, PS — 4 employees were required to have first passed the clerk-carrier examination. 56. An employee who took the reopened 1970 examination was put on the initial level supervisory register by attaining a cutoff score of 55%, i. e., a percentile score indicating that an employee scored better than 55% of the test takers on a nationwide basis. 57. The following were the results of the 1970 reopened examination: white Employees Black Employees Other Employees Total Employees 152 94 1 Applicants 247* 92 14 1 Eligible 107 60.5% 14.9% Passing Rate 43.3% *Does not include L.H. Blakeney and T. H. Shonts, races unknown. 58. The different passing rates for white and black employees on the reopened 1970 examination was statistically significant based on a chi-square analysis, and the result could not have occurred by chance more than one time in a thousand. It is probable almost to the point of certainty that something other than the ability the test is supposed to measure is responsibility for the racially differential result. Under the four-fifths rule, the results of the reopened 1970 examination constitute serious adverse impact on black employees. USPS did not present any evidence that the reopened 1970 examination was valid. No study was presented justifying the use of the 55% cutoff used with respect to the reopened 1970 examination. 59. The standing of an employee on the reopened 1970 examination initial level supervisory register was determined by a rank order based on the employee’s examination score and a service credit calculated by adding .5 point for each full year of postal service (including certain military service) not to exceed 27 years. 60. The average service credit for black employees who passed the reopened 1970 examination was 4.29 and the average service credit for whites was 6.27. While this difference may compound the adverse impact of the examination to some extent, the difference between the two means is not statistically significant. The addition of service points to test scores did not affect the adverse impact of the examination on black employees. USPS has provided no study or evidence to justify the use of service credits. 61. The supervisory register based on the original 1970 examination was replaced by a register based on the reopened 1970 examination on January 24, 1974, which remained in effect until September 16, 1974, for purposes of selection for detailing or promotion to initial level supervisory and other upper level positions. K. The 1974 Examination 62. In order to apply to take the 1974 initial level supervisory examination, a Charlotte Post Office employee, at any level, had to have at least one year of service in USPS by March 30, 1974, the date of the examination. 63. A Charlotte Post Office employee who took the 1974 examination was put on the initial level supervisory register by attaining a cutoff score set by the local post office, which in the case of the Charlotte Post Office was 60 percent, i. e., a percentile score indicating that an employee scored better than 60 percent of the test takers on a nationwide basis. 64. The following were the results of the 1974 examination: White Black Other Employees Employees Employees Total Employees Applicants 188 67 256* Eligible 109 17 127 Passing Rate 58.0% 25.3% 49.6% *Does not include R. H. Wilson, race unknown. 65. The different passing rate for white and black employees on the 1974 examination was statistically significant based on a chi-square analysis, and the result could not have occurred by chance more than one time in a thousand. It is probable almost to the point of certainty that something other than the ability the test is supposed to measure is responsible for the racially differential results. Under the four-fifths rule, the results on the 1974 examination constitute serious adverse impact on black employees. 66. USPS did not present any evidence that the 1974 examination was valid. No study or other evidence was presented justifying the use of the 60% cutoff score on the 1974 examination. 67. Service credits were not used to supplement the scores of Charlotte Post Office employees who passed the 1974 initial level supervisory examination in order to determine the standing of an employee on the register. The supervisory register based on the 1974 examination was in effect from September 13, 1974, through October 1976, for purposes of detailing and promotions. L. Supervisory Selection Procedures Beginning October 1976 68. The existing initial level supervisory register for all crafts based on the 1974 initial level supervisory examination register was cancelled October 1976, and replaced by a register with the names of employees who had a minimum of IV2 years postal service, met minimum qualifications for the position, and completed a postal training course entitled “Introduction to Postal Service Course.” 69. Employees who were placed on the examination register for initial level supervisory positions were then rated A, B or C by their immediate supervisor and next higher level manager on PS Form 439, and employees rated A were considered for promotion. 70. The general supervisory candidate list by category and race as of April 1977, was composed of the following employees: Category White Employees Black Employees Total Employees A 36 8 44 B 16 11 27 C 3 3 6 Totals 55 22 78* *Includes one employee, race unknown. 70a. Beginning March, 1978, a new system for the selection of supervisors, the Profile Assessment System For Supervisors (P.A.S.S.) was implemented. P.A.S.S. involves an employee rating his own supervisory potential, a similar rating by the employee’s supervisor, the use of a computer to delineate the differences between the ratings of employee and supervisor and an allegedly racially neutral and otherwise qualified panel to resolve such differences. Although “no one fails P.A.S.S.” (the rating catagories list supervisory potential as “excellent”, “good” or “some”) as a practical matter those employees rated excellent get details and promotions. As of the date of trial, P.A.S.S. had not been in effect long enough to see what, if any, discriminatory results were produced by its design. M. Promotion Practices 71. As discussed above, promotions with respect to non-supervisory jobs controlled by the various collective bargaining agreements (i. e. craft jobs) are filled on a “senior qualified” basis. That is, the promotion goes to the employee with the most continuous service in the particular craft who desires the promotion as long as said employee has the minimum job qualifications for the pertinent specific vacancy. 72. Promotions for upper level supervisory and management positions have been during times pertinent to this case, at least in theory, filled on a “best qualified basis”. The normal procedure is for the particular vacancy to be advertised to incumbent employees either by placing notices on appropriate bulletin boards or through USPS publications. Interested employees indicate in writing if they desire to be considered for the pertinent vacancy. A list of employees who express interest in the promotion is compiled. Sometimes, certain individuals are eliminated from this initial list because they do not have requisite “specialized experience” (that is experience in USPS jobs within a certain level of the job level of the vacant position or equivalent education) or “generalized experience” (USPS job experience, non-USPS job experience or education which would provide, again at least in theory, knowledge of the particular job in question). The task of determining whether the particular eligibility requirements (or whether minimum qualifications are met) for a given higher level position, whether supervisory or non-supervisory, is generally made by a personnel specialist from the Employment and Labor Relations division of USPS using PS Form 2497, entitled “Qualification Analysis Worksheet”. The personnel specialist will review the employee’s application for the position and his official personnel folder on file with the personnel office, including all written examination scores, such as entry level clerk-carrier, initial level supervisory examination and any Federal Service Entrance Examination (FSEE) scores. The generalized experience and specialized experience requirements for each position are set forth in a U.S. Civil Service Commission publication, the X-118B Handbook. The normal requirement is that generalized experience and specialized experience be obtained at a given “level of experience”, that is, experience in a job within no more than two or three levels below the position being filled. The level of experience requirement may be met by permanent assignment or detail. Level of experience may be waived by substitution of education or prior business experience may be substituted although no written standards exist. Education is permitted as substitution for specialized experience with the personnel specialist using his judgment as to when education may be substituted. After names are eliminated because particular individuals fail to meet the requisite experience levels, the remaining applicants for the promotion are given an opportunity to appear before . a Promotion Advisory Board to be orally interviewed. The Promotion Advisory Board normally consists of three individuals. The usual course is for the Board to meet and then to provide three names to the Charlotte Postmaster for the selection of an individual to fill the pertinent vacancy. During certain periods, the Promotion Advisory Board has provided the names of suggested individuals to the Postmaster in the order that the Board rate their qualifications. At other times, the Board has simply presented three (or more) names in alphabetical order to the Postmaster without any indication as to which of the individuals was rated the most qualified of the three. Promotion Advisory Boards are chosen by the Postmaster and are composed of higher level supervisors, i. e., a supervisor from the work unit and a supervisor at least one or two levels above the position being filled, and as a practical matter include the unit head of the vacant job. As of trial, the Promotion Advisory Board completed a PS Form 1796, entitled “Qualification Rating,” by taking qualifications from the X-118B and listing elements for the job, and then determined in its discretion which qualifications were most important for the position and whether particular applicants have demonstrated low, satisfactory or superior potential, although there are no written guidelines for determining potential. There are no written guidelines to be used by Promotion Advisory Boards, and Board members sometimes used their own personal knowledge of an applicant in his rating. The Promotion Advisory Board completes a PS Form 442, entitled “Report on Interview for Supervisory Position,” as to how it arrived at its rating. After receiving the Promotion Advisory Board’s recommendation, the Postmaster selects one candidate on the list, although in the case of supervisory positions, he may consider other candidates on the supervisory register (prior to June 29, 1972, only other candidates within the zone of consideration). 73. The promotion. process described above, although generally the ■ theoretical model, may also include additional steps and reviews, for example: (a) As discussed above, written tests have been utilized at various times to prepare rosters of employees eligible for promotion and detail (the temporary filling of a job vacancy). Employees have been required to attain a required score (which has changed from time-to-time) to reach the “zone of consideration” for the various jobs for which tests have been utilized. (b) The Promotion Advisory Boards consider (or fail to consider) a wide range of matters. An employee’s past work history, the details he has received, his discipline record, his supervisory evaluations and the impression created by an oral interview are all utilized, from time-to-time and in varying and unknown degrees, to rate candidates for promotion. (c) Notwithstanding the rules pertaining to eligibility for consideration, the USPS has from time to time decided to interview persons who are ineligible under established criteria. There have been no set criteria to determine when the practice will be followed. Should a person be designated for selection who is rated ineligible, the applicant can be granted a waiver of the eligibility requirements. There is no evidence which would show what, if any, standards are used to determine whether an employee is entitled to a waiver. They have apparently been applied arbitrarily. For example, in 1974 Napoleon Chisholm and a white employee named Joiner were allowed to compete for a Level 21 position as Manager of Finance, notwithstanding the USPS position that each lacked the specialized experience requirement. However, when the USPS decided not to fill that position and instead split the position into two level 20 jobs, Chisholm was not allowed to compete. 74. USPS attempted at trial to justify a number of its promotion decisions on the grounds that the white selected for a position had been employed for a longer period of time or had more experience in a given functional area than had the unsuccessful black candidate. These upper level positions, however, are ostensibly based on overall qualifications and not simply seniority, and being employed for a longer period of time with the Postal Service does not qualify one for higher level positions. The Promotion Advisory Boards were designed to and did consider a whole range of factors, including the applicant’s presentation, his dress, articulation, his application, his supervisor’s recommendation and the interview itself, his job experience, his background, his personnel file, his sick leave balance and the various categories set forth in the Report on Interview For Supervisory Position (which included at times “stability and social adjustment”, “vitality” and “mental qualities”, among others). Moreover, as discussed below, one of plaintiffs’ primary claims has been that whites were hand picked for promotions and received extensive training through the detailing process which made the Promotion Board’s decision simply a rubber stamping of previous favorable treatment. The fact that seniority per se did not control promotions and details is made clear by the fact that less senior whites were sometimes promoted over qualified blacks. For example, John Pettice (black) was passed over in favor of Richard Askew, a white with less time with the USPS and less supervisory experience. William McCombs (black) was denied a position in 1974 or 1975 in favor of a white with less time with USPS. Herman Rushing (black) was denied a detail to Civil Service examiner; the white detailed to the position had less time with USPS and less time as a member of the Civil Service Board. David Willis (white) was provided a Foreman of Mails job in preference to the more senior and qualified Roy Dixon, Jr. The Postmaster testified that seniority was not