Full opinion text
OPINION, RAMSEY, District Judge. Plaintiff Equal Employment Opportunity Commission (“EEOC”) filed the complaint in this action on June 3, 1980, alleging racial discrimination in employment in violation of Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. § 2000e, et seq. (“Title VII”). The complaint challenges that defendant International Business Machines Corporation (“IBM”) discriminated in its (1) performance planning, counseling and appraisal program, (2) compensation program and (3) promotion program as these programs applied to black managerial and professional employees at defendant’s Data Processing Division (“DPD”) facilities in Maryland. Plaintiff presented its case-in-chief from April 15 until May 15, 1983, and the defense spanned the period from May 16 until June 14, 1983. The EEOC offered rebuttal from June 14 until June 17, 1983, at which time the trial record was closed. After the parties submitted proposed findings of fact and conclusions of law, the Court heard final argument on August 12, 1983. Pursuant to Fed.R.Civ.P. 52(a), the Court makes the following findings of fact and conclusions of law. I. Procedural Background On August 16, 1976, George W. Hunter, Jr. submitted a charge of discrimination (# 033-627871) with the EEOC alleging that IBM had discriminated against him on the basis of race with respect to performance plans and evaluations, promotions and pay. The EEOC initially referred the charge to the Montgomery County Human Relations Commission for processing, but later rescinded the referral, and the charge was officially filed with the EEOC on October 14, 1976. Hunter amended the charge on October 26, 1976, and the EEOC first notified IBM of the charge on November 1, 1976. On August 1, 1977, Hunter submitted a second amended EEOC charge alleging retaliation for the filing of the original charge. The EEOC issued a determination letter on November 3, 1977, finding reasonable cause to believe that IBM had discriminated against Hunter and other black professionals and managers in Maryland. The EEOC also asked IBM to engage in conciliation efforts, including the granting of back wages and/or promotions to members of the class, reinstatement of Hunter and promotion to a branch manager position with back pay, and modification of certain employment practices at DPD. After IBM refused to accept these proposals, the EEOC notified IBM on May 23, 1978, that conciliation efforts had failed. The EEOC complaint was not thereafter filed until June 3, 1980. The complaint alleges that IBM had discriminated against black professionals and managers employed in IBM’s Maryland DPD in the categories of pay, promotions, and performance evaluations. The EEOC cites IBM’s failure to develop non-discriminatory criteria to measure the effectiveness of their managers and professionals, to post notices of position vacancies, and to take affirmative action to eliminate alleged discriminatory employment policies and procedures. As to George Hunter specifically, the complaint alleges that IBM discriminated against him by refusing him promotion to a branch manager position, by paying him discriminatory wages, and by constructively discharging him. IBM’s answer denied all of the EEOC allegations and maintained that its standards for compensation, promotion, and evaluation constituted a “bona fide merit system” as outlined in 42 U.S.C. § 2000e-2(h). In addition, IBM raised laches and the statute of limitations as affirmative defenses, both of which were dismissed by the Court by letter dated March 2, 1983, without prejudice to defendant’s right to raise these defenses at the close of plaintiff’s case or at the close of all evidence. By the same letter, the Court confirmed that the claims to be tried were those of black managerial and professional employees only and not those of marketing or sales personnel, which plaintiff had belatedly attempted to raise. Although the Court did not dismiss the claims pre-dating December 18, 1975 on limitations, because the parties did not engage in discovery on these claims, they were not deemed appropriate for presentation at trial. The Court did, however, give plaintiff the opportunity to show continuing violations and accord it the option to move at the end of the case to reopen the liability issue on the pre-1975 claims. The plaintiff did not request to reopen discovery on the earlier claims arising in 1965-75 until the eve of trial, when it was estimated that it would take six months to two years of further discovery to prepare these earlier claims for trial. Although the Court denied the plaintiff’s request to reopen, it did allow plaintiff to offer at trial any background material that it deemed relevant. In making its findings of facts, the Court first turns to George Hunter’s individual claims. The Court will then consider the anecdotal testimony offered by the class witnesses and finally the statistical evidence offered by both parties. II. Findings of Fact A. Individual Claims of George Hunter George Hunter began working for IBM on November 14, 1966, as a systems engineer (“SE”) trainee. His initial compensation was $9,000 per year. Upon completion of training, Hunter qualified as an associate systems engineer, a level 52 position. IBM allowed Hunter to switch to a marketing job in November of 1968. He was the “team leader” of the NASA-Goddard marketing team and oversaw sales to the orbiting astronomical observatory. In July, 1971, IBM promoted Hunter to a level 56 position: marketing programs administrator for the medical industry. In July, 1972, Hunter was again promoted, this time to marketing manager in National Federal Marketing (“NFM”), a level 59 position. Under Hunter’s management, his marketing team won a significant account, that of the National Oceanographic & Atmospheric Administration (NOAA). This “win” provided the impetus for his selection as NFM’s outstanding Marketing Manager for 1973. Up to this point, Hunter’s success and attendant advancement within IBM was exceptional. His performance ratings were all satisfactory or better. (The lowest was a “3”.) On January 16, 1974, Hunter was appointed administrative assistant (“A.A.”) to C.E. (Chuck) McKittrick, Jr., DPD Vice President for Public Sector Industry Marketing (“PSIM”). This position was generally regarded as a stepping stone into upper level management at IBM. It is a temporary assignment of approximately one year’s duration, during which a rising employee is given the opportunity to gain a breadth of experience and exposure to the office of the vice-president and its duties. Practically speaking, the position is “unleveled” because of its unique training nature, although it is formally assigned a level 50 holding code. It was customary that no performance plan be prepared for the position, and McKittrick did not prepare one for Hunter. The performance plan issue, however, was a primary focus of Hunter’s testimony at trial. Hunter asserted that the lack of a performance plan adversely affected both his chances for promotion and his salary as determined by company guidelines. The EEOC asks the Court to find that McKittrick refused to put a performance plan in place for Hunter during the fifteen-month period he served as his A.A. despite “Hunter’s repeated requests.” According to McKittrick, Hunter never complained about the absence of a plan, nor did he request one. McKittrick had never prepared a formal performance plan for any of his previous A.A.’s, all of whom were white. Because Hunter as McKittrick’s A.A. worked under his close daily supervision, there was little or no need for a performance plan. Hunter discussed his duties with McKittrick as well as with his predecessor as A.A., Max McCullough. McKittrick evaluated Hunter on an ongoing basis and the Court finds that the absence of a performance plan was neither irregular nor did it hinder Hunter in carrying out his duties. Although technically unleveled, Hunter was paid a salary equivalent to a level 59. Nevertheless, it was Hunter’s opinion that his position as A.A. was commensurate to an industry marketing manager’s position, a level 60 or 61 position. This assumption has no basis in fact. It is apparent from the record that A.A.s were then and are now routinely paid within the salary range of the level they previously held and that this compensation rate was acceptable because of the valuable experience the job provided to the employee. Hunter vehemently asserted that he was paid “below minimum” as an A.A. However, McKittrick gave Hunter a 13.6% pay increase upon his elevation to the job of A.A. The raise was consistent with McKittrick’s treatment of past A.A.s and brought Húnter within the appropriate range of 'compensation for a level 59 employee. With respect to promotion, George Hunter had a desire almost amounting to an obsession to attain the position of branch manager. Administrative assistant to a corporate vice-president was very often the springboard to the branch manager position. It was Hunter’s dissatisfaction over his failure to attain a branch manager’s job that triggered a deterioration in the employee-company relationship and ultimately led to this lawsuit. Initially, McKittrick was satisfied with Hunter’s performance as an A.A. Within the framework of Hunter’s individual development plan (“IDP”), McKittrick assessed Hunter as having a “B” potential and evaluated his performance in May, 1974, as a “2”. He estimated that Hunter should be ready to compete for a branch manager position in six months. At one point later in 1974, however, McKittrick did question Hunter about his objectivity in investigating charges against a black manager. McKittrick testified that he did so only after complaints from other employees. McKittrick also noticed some significant deficiencies in Hunter’s management capabilities, specifically a tendency to over-delegate and an avoidance of analytical tasks. In an effort to address these weaknesses, McKittrick arranged for Hunter to participate in IBM’s corporate and division middle management school programs. McKittrick, nevertheless, supported Hunter in his candidacy for a branch manager position. In December of 1974, he arranged for an interview between Hunter and Ed Lucente, Regional Manager in Boston, for a position as manager of the IBM “location” in Providence, Rhode Island, which had recently been downgraded to a location from a branch during reorganization. Backed by McKittrick’s recommendation, Hunter was offered the job. He rejected it because he felt that the position was inferior to that of branch manager, the job for which he felt qualified and was convinced he deserved. McKittrick asked Hunter to reconsider his decision. McKittrick believed th¿ position to be the best one available at the time and was very much aware of the shrinking number of branches due to IBM’s reorganization. McKittrick viewed the location manager position as a positive step for Hunter and believed that the opportunity to work under Lucente would be extremely beneficial. McKittrick testified that he equated the Providence location to a medium-sized branch office and that Hunter was in effect exalting form over substance in his refusal to take the job. There were 40 employees at the Providence location, which is more than at some medium sized branch offices. Hunter testified that he was also troubled by the future of the Providence location — the indications were that it was to be phased out altogether. Lucente testified, however, that he told Hunter that phase out was only one of three options. The other two were to maintain its location status or to return it to the status of a branch. The latter was his preference. He planned to review its status within the next year. Lucente told Hunter that although Hunter would not report directly to him, he would personally monitor his performance, salary, and career development. Hunter was to be included in all branch manager meetings. He told Hunter that he would be “Mr. IBM” in Rhode Island. Lucente also assured Hunter that in the event that the Providence office was closed, a significant position on regional staff would be available until a branch manager position opened up. However, during the course of the meeting it became clear to Lucente that Hunter was not interested in the position and that Hunter had so concluded prior to the meeting. Hunter refused to reconsider his decision. He believed he was overqualified for a location manager position, and that he deserved to be a branch manager particularly because of his impression that all of his predecessors as. A.A.s had made such a move. Ironically, after Hunter’s rejection of the position, the Providence office again became a medium-sized branch in September, 1975, after Lucente’s scheduled review. According to McKittrick, Hunter’s performance declined after the Providence decision, and he lost his drive. In February, 1975, McKittrick was promoted and David Fine succeeded him. Hunter remained as Fine’s A.A. Fine is currently an independent consultant and was an extremely candid, credible witness. It was Fine who had originally recommended Hunter for the position of A.A. Fine met with Hunter to discuss Hunter’s career developments. Hunter had a number of grievances: he had been an A.A. for too long, his career had not progressed in the manner he had expected, he was not being paid enough, he had not been appraised by McKittrick, and he wanted to be a branch manager. Fine immediately asked McKittrick to appraise Hunter formally, but McKittrick told Fine that he felt it would be detrimental to Hunter for him then to evaluate Hunter formally. McKittrick reported to Fine that Hunter had been an inconsistent performer and that his most recent performance rating and morale were low. McKittrick, however, did assess Hunter’s performance as a low “2” to support a salary increase. McKittrick testified that Hunter’s performance was really that of a “3” level at that time. Fine testified that if Hunter was below minimum in salary it did not surprise him because Hunter had been moving up so quickly through the salary levels. Typically, when someone is moving up fast, he will start at the bottom of the range of salaries of a particular level. Fine found Hunter to be erratic in his performance, arid testified that Hunter even admitted that his attitude was poor. Fine found that Hunter appeared preoccupied with the frustrations arising out of his apparent inability to be promoted to branch manager. Although Fine actively investigated the possibility of a branch manager position for Hunter, he frankly told Hunter that the probabilities were low because of the tight business environment and the reduction of the number of branches arising from the reorganization. Fine had several counseling sessions in an attempt to motivate Hunter. Although he assured Hunter that he still had the potential to become a branch manager, he cautioned Hunter that he would have to perform consistently at a high level if he expected to obtain the job. For many of the same reasons assigned by McKittrick, Fine also never formalized a performance plan for Hunter. He was confident that Hunter was well aware of his duties as A.A. There was no testimony elicited at trial, that indicated that Hunter was treated differently from any other A.A. From July to August, 1975, Fine offered Hunter promotion to a level 61 position as industry marketing manager in the finance industry organization in Princeton, New Jersey. Hunter refused to even consider this offer. ■ The reorganization of IBM in 1975 resulted in the restructuring of DPD’s industry marketing organization. Two new groups were established, one to be responsible for market planning which Fine was to manage, and the other to be responsible for marketing support to the field which H.F. (Bud) Enright would manage. IBM was placing particular emphasis on the reduction of headquarter staff and expenses and the increase in sales. This meant that headquarters staff would be reduced with many managers and professionals being required to return to the field. Fine and Enright decided that Hunter was best suited to manage the new public sector industry marketing (“PSIM”) procurement support organization within the marketing support group. Hunter had knowledge of the Federal procurement process and his background as administrative assistant would be helpful. Hunter first declined the position, but Fine eventually talked him into taking it. Fine told Hunter that he had little alternative because Fine’s old position had been abolished as was the A.A. job. Hunter began as procurement support manager, a level 60 position, on September 1, 1975, and reported directly to R.G. Richmond, the new Public Sector Industry Marketing manager. In his new position, Hunter’s responsibility was to develop a procurement support function. It was Hunter’s belief that Richmond assigned a co-worker, Jerry Addicott, to perform the same function. It is unclear to what extent there was overlap between the work committed to Addicott and Hunter’s assignment. It appears, however, that management was simply taking advantage of Addicott’s experience in state and local government and his familiarity with the issues. No discriminatory or malicious motive can be gleaned from any possible similarity of assignment. It is clear that Hunter disagreed with Richmond over the role that he and Addicott should play in developing the strategy and organization of the procurement support function. Hunter went off to work on his own plan which focused on a centralized organization and utilized twelve government marketing ad-visors (“GMAs”) who would report directly to Hunter. Richmond’s task force recommended instead a decentralized organization of GMAs. This conclusion was presented at Richmond’s request by Addicott to Enright in White Plains, New York on November 11, 1975. Richmond directed Hunter to attend also, but he declined to do so. Instead, Hunter wired Enright with his own plans. Enright was concerned when Hunter did not attend the meeting and it was apparent to him that Hunter’s work attitude was deteriorating rapidly. Enright summoned Hunter to White Plains for a face-to-face meeting. Hunter testified that at this meeting, Enright accused him of being insubordinate and told him that he would be driven out of the business. ' Enright disputes this account, recalling that he and Hunter discussed what it was like to be black in an organization such as IBM. En-right, who now works for Prime Computer, was adamant that he had never told Hunter that he would drive him out of the business. He did acknowledge that Hunter complained that Enright and Richmond had misled him. Enright recalled that McKittrick initially felt that he had made a “brilliant” choice when Hunter was elevated to the A.A. job. Enright observed, however, that Hunter began to misuse the power of the office and that he lacked objectivity. He became what Enright termed a “surrogate equal opportunity manager.” Enright testified that the procurement support job assumed by Hunter was the most important position in the sector other than that held by Randy Richmond. Nevertheless, Hunter was unhappy because his sights had been set on a branch manager position. Hunter’s dissatisfaction culminated in an “open door” letter to Frank T. Cary, Chairman of IBM’s Board of Directors, asking that the Chairman investigate a number of Hunter’s concerns. Hunter sought redress for being placed in what he termed a “meaningless” position instead of promoting him to branch manager. He also questioned IBM’s commitment to moving blacks into higher management positions. The complaint was initially referred -to J.F. Akers, DPD president, for investigation, but Hunter subsequently requested that the investigation be centered in the Chairman’s office. With Hunter’s consent, George Youngdale, director of IBM’s Resident Manager program, was named as the investigator on behalf of the Chairman. On November 25, 1975, Youngdale met with Hunter for more than four hours at Hunter’s office in Bethesda. At that meeting, Youngdale reviewed Hunter’s complaints in detail. Youngdale made the following findings based on interviews with ten persons concerning Hunter’s complaint: Hunter had not been discriminated against because of his race, he had been fairly paid by McKittrick, he had not been unfairly denied a branch manager position, he had been offered two promotional opportunities which he had chosen to reject, he was still a viable candidate for a branch manager position, and his present job was meaningful and offered him an opportunity to sue-. ceed in IBM. Youngdale met with Hunter on December 18, 1975, to review his investigation, conclusions, and recommendations. Hunter did not believe that the investigation was thorough and asked Youngdale to answer additional questions and make further findings. Youngdale did so and reported back to Hunter in January of 1976. At that time he informed Hunter that Division President Akers wished to meet with him. Hunter met with Akers for an hour in White Plains and discussed, according to Akers, the Providence job offer, Akers belief and commitment to IBM’s equal opportunity program, the process by which IBM selects branch managers, and Hunter’s concerns about the job he then held. Hunter testified that Akers used obscene language,- impliedly directed at him, when discussing the failure of someone to take advantage of a location manager position as a stepping stone to a job as branch manager. Hunter also reported that Akers used obscene language in maintaining that none of his managers discriminated. Akers flatly denied using such language. The Court is doubtful that a person in Akers' position would exhibit such extreme bad judgment as to direct obscene language at a disgruntled employee during a counseling session. The Court accepts the Akers’ testimony, and expressly finds that there was no such verbal conduct on Akers’ part during the interview. Akers directed his own investigator, Jack Quinn, to look into the viability of Hunter’s job as well as his future. Quinn’s written report concluded that it was reasonable to offer the job to Hunter, it was a viable position, Hunter could still obtain a branch manager position, and there were alternative positions available if Hunter wished transfer. Youngdale reviewed the conclusions of this study with- Hunter on January 30, 1976. At that point Hunter indicated that his working relationship with Richmond and Enright made the job untenable even though he acknowledged that the position was viable. Youngdale indicated to Hunter that there were other jobs available, but Hunter wished to await the Chairman’s report. On February 6, 1976, Cary sent a letter to Hunter, informing Hunter that he believed that he had been fairly treated. Hunter remained in the procurement support job under the supervision of Randy Richmond. Richmond counseled Hunter about his lack of leadership and negative attitude. By this point in time, Hunter had allowed his dissatisfaction to affect his work and was not fully carrying out his duties. Richmond gave Hunter an informal “3” rating — “exceeds at times” — on May 26, 1976. Although Hunter conceded that his attitude was a problem, he did not agree with the evaluation. In July, 1976, Richmond resigned from IBM and was replaced as manager of PSIM by T.E. Hobbs. Without informing Hobbs, Hunter submitted his charge of discrimination to the EEOC on August 16, 1976. Hobbs did not learn of this charge until IBM was officially notified in November. Hobbs and Hunter had several informal discussions about Hunter’s dissatisfaction and attempted to start anew. Hobbs followed up on Hunter’s interest in a branch manager position and discovered that Hunter was on the branch manager candidate list, but because of his performance was not being considered a “highly recommended” candidate. Hobbs relayed this information to Hunter. T.R. Lautenbach, DPD president, assigned M.J. Mullin to meet with Hunter and discuss Hunter’s charges of discrimination. Lautenbach in the past sought to communicate directly to employees who had filed discrimination charges. Mullin met with Hunter for three hours on February 2, 1977 at the office of the IBM resident manager in Arlington, Virginia. Hunter testified that Mullin gave him the impression that filing the EEOC charge had adversely affected his career and that he really did not have a future in the corporation. Mullin’s notes and his testimony, however, indicated that he assured Hunter that the filing of the EEOC charge would not affect his career and that if he performed at a consistently high level, he could still become a branch manager. He did inform him, however, that IBM believed that it had not discriminated against him and that he would not be denied promotion simply because he had filed the charge. On April 5, 1977, Hunter resigned from IBM, effective April 30, 1977. Hunter testified to a general feeling of despair and helplessness that led to his resignation. B. Class Witnesses The plaintiff called nine class member witnesses in addition to George Hunter. These witnesses offered anecdotal testimony concerning their experiences with IBM which was intended to support the allegations in the complaint. Each of these nine persons (except as hereinafter mentioned) were either a manager or a professional in DPD Maryland sometime between December 18, 1975 and December 31, 1981. In addition, the EEOC called two black IBM employees, Kenneth W. Branch and Raymond J. Pitts, who had never worked for DPD in Maryland. The Court initially notes that much of the testimony of these witnesses was both irrelevant to the issues in the case and was grossly repetitive. The Court will summarize, seriatum in the order that they appeared at trial, those aspects of the anecdotal testimony presented by class members which is of even marginal relevance. 1. Frank Sartor Frank Sartor began working for DPD in January, 1969 in the systems engineering career path, but became a sales employee on January 1,1970. On September 1,1974, he was promoted to a Level 56 professional position as a marketing program administrator in Maryland. He remained a professional in Maryland until December 31, 1981, when IBM reorganized. At that time he was transferred to the National Accounts Division (“NAD”). Sartor indicated dissatisfaction with IBM beginning with his very first starting salary. During the course of his employment, Sartor worked under two black managers, in addition to a number of white managers. He testified that several of the appraisals that he received did not accurately reflect his performance. He believed that race played a role in certain appraisals and that he was not allowed to perform up to his potential because he received assignments of little importance. All of the ratings received by Sartor were either “2”s or “3”s. Although he consistently felt that his ratings were low, Sartor did not point to any specific instances of bias. It is difficult to discern any discriminatory pattern from the ratings because one black manager rated Sartor a “2” and another rated him a “3” while similarly, some white managers rated Sartor a “2” while others rated him a “3”. ' Sartor did interview for at least two management jobs, one in Syracuse and one in Houston, but was not promoted. He listed the names of other white co-employees who were promoted to managerial positions. On cross-examination, it was established that Sartor limited his options because he wished to stay in the Baltimore-Washington area. He also apparently expressed reservations about taking other managerial jobs because he was under the impression that he might lose money. Sartor admitted that not all whites with- whom he had worked had become marketing managers and that he knew blacks who had attained that position. Indeed, a number of marketing and SE manager positions in the Baltimore-Washington area were filled by blacks beginning in 1976. Sartor was unable to offer any concrete reasons for believing that he was not considered for these positions because of his race. IBM called Richard Klett, one of Sartor’s managers, to respond to Sartor’s testimony. He explained his reasons for appraising Sartor a “2” instead of a “1”. There were several business losses, in Klett’s opinion, that Sartor could have dealt with better. Sartor made significantly fewer branch/customer visits than other members of Klett’s team. Klett testified that Sartor maintained a relatively low visibility with branch managers and that he needed to improve his skills in dealing with people. Klett did, however, arrange for Sartor’s marketing manager interview in Houston and endorsed him as a viable candidate, even though other candidates were more highly qualified in a technical sense. Overall, Klett did not consider Sartor to be a highly competitive candidate for a marketing manager’s job. Klett also testified that about half of the approximately dozen candidates that he sponsored for marketing manager did not attain that position. Almost all of those who did not were white. Sartor testified in rebuttal and, although his testimony differed significantly from that given during direct examination, he failed to give any concrete examples as to how he was treated less fairly due to race. On direct, Sartor had testified that Klett failed to explain the reasons for his ratings, but on rebuttal, Sartor admitted to many conversations with Klett as well as a formal appraisal session. Sartor provided the Court no basis for finding that any of his appraisals were in any way based on race. The Court makes a general finding that although Sartor was displeased with some of his managers and with some of his ratings, there was no evidence presented that in any way indicated race as a factor. His ratings, administered by both blacks and whites, were consistent throughout his career, and valid reasons for less than exceptional ratings were provided. Although Sartor did not obtain the marketing manager position to which he aspired, he was promoted consistent with his capabilities in the opinion of his managers. As of 1979, he was earning almost $36,000 a year as a senior marketing support representative. 2. David H. Swann David Swann joined IBM in November, 1968, as an Assistant SE trainee assigned to a DPD office in Washington, D.C. In February, 1969, he transferred to a Maryland facility. He was DPD professional or manager from February 1969 through the IBM reorganization of January, 1982, when he was transferred to NAD. In March, 1982, he was promoted to his present position in NMD (National Marketing Division). Swann indicated dissatisfaction with IBM dating back to 1970 when his manager appraised him as a “4” performer. Swann attributed this appraisal at least in part to his inability to work more than “normal” working hours because of a personal family problem. Swann implied racial bias on the part of his manager and indicated that he disliked his “bush” hairstyle. George Anderson, a black, was Swann’s next manager. Swann initially received a “3” rating from Anderson and subsequently a “2” rating. He received various awards and commendations and on January 16, 1976, was promoted to a level 57 specialist position as an advisory marketing support representative, a position which he had actively sought. Swann received a “3” appraisal in September, 1977, and although initially dissatisfied, he testified that it was a fair appraisal once his manager added comments to it upon his request. His closeout appraisal from Anderson, a “2”, was satisfactory. On August 1, 1978, IBM promoted Swann to systems engineering manager (“SEM”). Swann had three white managers while an SEM: Don Swedenborg, Jeff Samuelson and David Nichols. Swann received “3”s from both Swedenborg and Samuelson, but did not consider them unfair. Nichols gave Swann a “2” appraisal in March, 1981, and a “3” appraisal in April, 1982 for the period ending March 1, 1982, when Swann was promoted. Swann took issue with this last appraisal. Swann believed that Nichols’ attitude toward him shifted dramatically because of his involvement with the Black Worker’s Alliance (“BWA”). The April, 1982 appraisal, with which Swann disagreed, contained the following subratings: “2” in marketing, “2” in equal opportunity, “3” in customer satisfaction, “3” in personnel, and a “4” on general management. On cross-examination, however, Swann acknowledged that most of the statements made in support of the ratings were accurate. He admitted to receiving an unfavorable customer satisfaction survey. Nichols testified that his assessment of Swann changed significantly after one of Swann’s employees, Wayne Pries-man, “open doored” to Rooker’s administrative assistant, complaining about Swann’s poor management of him and about unfair promotion delays. After investigating the situation, Nichols concluded that Priesman had been mismanaged and discussed the problem with Swann. Another of Swann’s employees, Lu Nguyen, came to Nichols with similar complaints. As to Swann’s feeling that his membership in the Black Worker’s Alliance was a liability to his IBM career, on cross-examination Swann admitted that Nichols did not criticize him for attending BWA meetings, never told him not to attend such meetings, and never expressed any concern about Swann’s BWA membership. There was no corroboration of Swann’s claim that Nichols was greatly influenced by Swann’s membership in the BWA. Swann interviewed for a number of jobs while he was under Nichols’ management. Not all of them interested him and he received two job offers, one of which he accepted. During one interview in Dallas, a manager made a racially insensitive remark which Swann reported to Nichols. Nichols investigated it and apologized for the manager’s statement. That position was one of several that Swann elected not to pursue. Swann testified that although he expressly wished a promotion to a level 59 position, some of the job interviews arranged by Nichols were for level 58 positions. However, Nichols testified that he discussed fully with Swann that while they would seek a job that would “technically” be a promotion, they should also look at the level 58 jobs that are available. In rebuttal to Nichols, Swann did not dispute his testimony that “a good career step might not always be a level promotion and it is very often not, as a matter of fact.” During their initial promotion discussions, Swann did not tell Nichols that he would not consider a level 58 job. Swann never made a claim that Nichols tried to force him to take a level 58 job and, indeed, the only job Nichols tried to persuade him to accept was a level 59 job in White Plains, which Swann turned down. At no time did Swann allege, that Nichols treated him differently than others under his management because of his race. Swann did point to a level 60 job, that of branch marketing support manager, which opened up in April 1982, after he had been promoted. Francine Yaker, another SCM in the branch, moved into this position. Swann maintained that in August, 1981, he and Nichols had discussed the possibility that this position would open up, and Nichols had assured him that neither he nor anyone else in the branch would get the job because it was two levels higher and required general staff experience. Swann testified that Yaker lacked the staff experience and was not qualified. Nichols testified that he never told Swann that he. nor anyone else in the branch would be a candidate for the job. Nichols chose Yaker for the job because she had been an outstanding SE in two different branches, had held regional staff positions in two different regions, had been a headquarter staff manager twice and had been an outstanding SEM. Nichols did not consider Swann because he had just been promoted and would not otherwise have considered him because of a perceived lack of leadership skills. Indeed, he and Swann had already discussed that Swann’s next job should not be in management. In summary, the Court finds that the “3” appraisal about which Swann complained had sufficient business justifications, and was not a product of race or Swann’s BWA activities. In addition, Swann was given significant promotional interviews and opportunities consistent with his experience and performance. 3. Milton J. Edmonds Milton Edmonds was one of the co-founders of the BWA and was its first chairman. He testified that blacks were at a disadvantage because (1) IBM did not recognize contributions to black-oriented fund drives, (2) blacks were not placed on visible accounts, (3) blacks dress differently, and (4) the location of plant facilities was not convenient to blacks. Edmonds felt that he was harrassed by IBM management because of his involvement in BWA. He testified that Chuck McKittrick advised him that he could lose his job if his BWA involvement continued, it being inappropriate for a manager to be active in a union. Edmonds discussed his position as level 57 manager in DPD’s products scheduling department in Maryland under the management of J.W. Shelton. Edmonds made varied assertions that he thought the salary increase he received should have been higher and that he had received three appraisals that were attributable to his race. At his deposition, however, Edmonds had stated that Shelton had not treated him unfairly because of his race. While he did not contend that his appraising manager was a racist, he pointed to the cumulative effect of the racist policies of the company as responsible for his lower rating. Other than conclusory statements, plaintiff presented no evidence that would support a finding that Edmonds received any performance evaluation under Shelton that was unfairly affected by his race. Neither was there any evidence that Edmonds was denied any promotion or paid unfairly because of his race during that time. 4. Betty J. Watkins Betty Watkins began working for IBM on December 3, 1973, as a general clerk in the federal systems division in Virginia. From May 1978 until March 1982 Watkins worked as a professional in Bethesda, Maryland, first for DPD and after the 1982 reorganization, for the informational services group. Watkins expressed dissatisfaction with numerous appraisals that she received during her IBM career. She exhibited, however, a general lack of understanding for the way IBM measured their employees against performance plans. While employed by DPD in Maryland, Watkins worked for two managers, Chuck Rosenberry, a white, and Ray Mosely, a black. She was unhappy with her treatment by both of these managers, but admitted on cross-examination that she had no basis for believing that it was due to her race. Watkins questioned the subjectivity of the rating process and eventually wrote an open door letter because “she had a very uneasy feeling about management.” She eventually sought a transfer because of her unhappiness. Watkins was promoted and rated a “2” before being transferred to the location of her choice. Watkins made some general allegations that white employees were getting more assistance than blacks. She testified that she did not receive sufficient help because the black staff programmer assigned to assist her was very busy. She also testified that she felt physically isolated from other members of her department because their offices were on the other side of the building. The Court finds Watkins’ testimony to be without credibility and lacking any basis in fact. Her testimony was generally conclusory and vague and every specific point she made was refuted by cross-examination and IBM’s rebuttal. It was established on cross-examination that Mrs. Watkins and her husband, who also works for IBM, had been relocated at the expense of IBM several times at their request. There is absolutely no evidence that Watkins was treated unfairly in any respect because of her race while she worked in DPD Maryland. 5. Russell T. Crockett Russell Crockett was a professional DPD employee in Maryland from his date of hire, June 9, 1969, until July 1, 1974, when he became a sales employee, and again from May 1, 1978 until August 1, 1979, when he returned to sales. Crockett testified that his career goal was to become a marketing manager. At one point he was promoted to a professional position as a marketing support-procurement administrator, a stepping stone for marketing manager. He complained, however, that this promotion prevented him from earning bonuses from a significant sale he had recently made to the Air Force Data Services Center. He was advised by Brad Bryan, his second level manager, that if he wanted to be a marketing manager, he should capitalize on the Air Force sale by accepting the promotion. Crockett hesitated to make the move because, while the initial sale to the Air Force represented four million dollars, the projected revenue from the total sale package was another six million dollars, which would result in further substantial bonuses. Crockett believed that he should remain in his sales position for another two and one-half years to obtain these bonuses. Crockett testified that Bryan pushed his move to national federal marketing staff because Bryan wished his removal from the Air Force account. He was subsequently interviewed by John Adourian for the position of marketing support administrator and encouraged by Fred Harllee, a black EOP representative, to accept the position. When Adourian agreed that Crockett should pursue a marketing manager career path and that the job would be at a level 57, Crockett accepted the job. On December 15, 1978, Adourian gave Crockett a “six-month” “3” appraisal with which Crockett agreed. This appraisal was given shortly before Adourian left for a new IBM assignment and after his departure, Crockett’s unit had no manager for about five months. Consequently, Crockett did not have a performance plan during this time, but he did not bring this to anyone’s attention. It was not established whether others in the unit had performance plans in place at the time. Adourian was eventually replaced by Don Dean who became Crockett’s manager. One of Crockett’s primary complaints was that Dean appointed Leah Solat, a white female who was also in Crockett’s group, to be the defense branch marketing procurement manager. She had joined the procurement staff after Crockett. Crockett believed that from January, 1979, to the time of her appointment, considerable direction, attention, and exposure was given to Solat which was not accorded him. Although the appointment would be a lateral move, Crockett considered it desirable because it was a high visibility position. Crockett complained that Solat was sent to White Plains by herself to make business presentations, while he was not. It was Crockett’s belief that Solat had no marketing or procurement background and had worked primarily in the scientific/social branch, not the defense branch. Crockett, on the other hand, had been in marketing since 1974 and had prior experience with the defense industry. Dean testified that Solat was a much better performer and had much greater potential than Crockett. Solat had only a few months less experience as a procurement administrator than Crockett. David Nichols, Solat’s branch manager when she was in SEM, testified that Solat was a “very good performer” and that she had the initiative, ambition, aggressive leadership skills, and people management skills that could carry her into several additional levels of management beyond the SE manager job. Subsequent to the Solat appointment, Crockett decided to return to the field in a sales capacity. He concluded that Bryan had been very dishonest with him and that he had pressured him to accept the staff position to get him off the Air Force account. Crockett, however, provided no support for a finding that Bryan was motivated by race in promoting Crockett to a staff position. On cross-examination, Crockett agreed that the best time to make a move to management was after a significant sale. He admitted that he did not feel that Bryan was forcing him to move to the staff position at the time of the promotion. The Court finds that Crockett may have lacked direction for the five-month period after Adourian left as his manager. This situation was unfortunate and may have hampered Crockett’s movement along his career path. There is no evidence, however, that others did not suffer from the same lack of direction or that this was the result of racial discrimination. IBM and any similarly structured company which has a policy of promotion from within would, at any given time, have vacancies which might cause some employees to suffer from a lack of. proper management. Certainly there is no way in which a racial connotation can be put on such occasional management shortcomings. Plaintiff fails to support its proposed finding that Crockett was promoted to a staff position as part of a scheme to discriminate against him because of his race. IBM offered a perfectly valid business reason for his promotion — that of trying to help him attain his goal of becoming a marketing manager. Although Crockett did not ultimately become a marketing manager, it was his choice to return to sales. Crockett’s disappointment at not attaining Leah Solat’s position is understandable, but IBM presented the testimony of three managers who believed that Leah Solat’s selection was appropriate. Plaintiff failed to rebut the testimony that Solat was significantly more effective as a procurement administrator than Crockett. There is absolutely no showing of pretextual treatment. 6. Eugene S. Hughes Eugene Hughes worked for DPD as a professional or manager from the time he was hired in 1966 until the January, 1982 reorganization. Hughes harbored a number of complaints against IBM, beginning with the “4” rating he received on his early performance plan in 1973 and 1974. He claimed that many of his performance plans were “overloaded” with unrealistic and unattainable objectives. At trial, Hughes testified that it was his belief that IBM discriminated against him because of his race with respect to every performance evaluation he received during the 17 years of his IBM employment. He felt that he should have received a “1 + ” on a particular plan even though he had received the highest rating of 1. Hughes filed an EEOC charge against IBM in October, 1978, in which he alleged that his manager, A1 Bissell, unlawfully discriminated against him with regard to job assignments and a May, 1978 performance appraisal. Hughes’ testimony contradicted his deposition testimony of November, 1982. At his November deposition, Hughes testified that only five of the fourteen appraisals he received reflected racial discrimination on the part of IBM. Three of the appraisals given by Bissell during the relevant period since 1976 fell into the category of those not claimed to be discriminatory. Hughes did, however, change his testimony at a later deposition held, in January, 1983. Hughes gave three reasons for changing his testimony: (1) he was surprised by the scope of depositions, (2) defense counsel harassed him; and (3) he did not review the document carefully. As to Hughes’ first explanation, he stated that he expected the deposition examination to be limited to the Bissell appraisal that was the subject of his EEOC charge. However, Hughes brought to the deposition copies of his appraisals dating to the 1960’s, his own analysis of his appraisal history back to 1966, and other documents predating 1978. In addition, he had submitted to the EEOC in connection with this charge information relating to his entire IBM career. As to Hughes’ second explanation, he was unable to specify any instance of harassment on the part of the attorneys. The EEOC counsel who was present during the deposition acted in the capacity as ad-visor to Hughes and did not object to the conduct of the proceedings. Indeed, Hughes was allowed to frequently confer with EEOC counsel. Having observed the defense counsel in question for the length of the laborious forty-day trial, the Court finds it extremely unlikely that this explanation has any basis in fact. Lastly, Hughes was given every opportunity to review the documents during his deposition, even if, as he asserts, he was unable to review the documents in advance. The Court accepts none of Hughes’ explanations and can assign little if any weight to his testimony. In addition to the direct contradiction in his testimony, Hughes’ credibility was eroded significantly by cross-examination. He admitted that his assignment to the Resource Management Systems (“RMS”) Task Force in early 1977 was a high priority assignment, but in his 1978 EEOC charge, he asserted that he had been denied assignment to high priority work. Hughes made bald accusations of unfairness and constantly attempted to rationalize his performance. His increasing nervousness on the stand was very noticeable, and he began rambling uncontrollably as his claims became more extreme. Hughes discussed one incident with Bis-sell that he thought exemplified Bissell’s discriminatory attitude towards him. In late May or early June, 1977, Hughes began to develop a survey to be used by IBM health industry specialists around the country to gather the necessary information concerning the needs of hospitals in their areas. Although Hughes apparently consulted with Bissell during the development of this survey and prior to his going on vacation, Hughes presented the survey package to Bissell’s secretary for typing and mailing without Bissell’s knowledge. The package was mailed out to the industry specialists on June 23, 1977. Hughes returned from vacation the second week of July and discovered that although the package had been mailed, Bissell had notified the industry specialists by telegram that they should not go forward on the survey until they received further word from him. Bissell testified that he never authorized the release of the survey to the field industry specialists. When Bissell returned from vacation, he learned that Hughes had sent it out in his absence. In telling health industry specialists not to proceed on this survey, he was responding to their complaints that it would require an enormous amount of work to complete. Hughes admitted at trial that it would take three to five days to complete the initial survey. Bissell told Hughes that the health industry specialists could not be asked to undertake elaborate surveys without first contacting their managers. In addition to Hughes’ lack of credibility, there also was no showing that Hughes was treated less favorably than whites either under Bissell or any other managers. On the RMS project about which Hughes had several complaints, he received a “3” rating from Bissell, while the team leader, a white, received a “4” because a higher level of performance was expected from him. Only three employees in health industry have received “4” ratings from Bissell and all three were white. In addition to Hughes, Bissell has managed three other blacks, Annette Clayborne, Irving Justice, and Jacqueline Cole. Bissell rated Clay-borne an initial “3” and then mostly “2”s, Justice a “3” and then a “2”, and Jacqueline Cole, a “1”. Hughes complained about the lack of promotion, but no employee in Bissell’s department has been promoted from level 58, the level at which Hughes joined the department, to a higher level. In summary, the Court gives little credence to Hughes’ testimony and does not find that he was the victim of any racial discrimination with respect to salary, promotions or appraisals. At the time of trial, Hughes was making $50,000 a year with IBM and there was no showing that he was treated any less favorably than similarly situated whites. 7. Kenneth W. Branch Although Kenneth Branch was listed by plaintiff as one of its class member witnesses, IBM filed a motion in limine to exclude his testimony because he had not been employed by DPD and allegedly had no personal knowledge of facts relevant to the litigation. The Court denied the motion in limine with the admonition that Branch’s testimony be restricted to relevant areas. Branch’s testimony related to his tenure as equal employment opportunity program (“EEOP”) manager at the Federal Systems Division facility in Gaithersburg in 1975 and 1976. There were some DPD employees who were housed at that facility during that period. The rest of his testimony centered around the paucity of employees and the number of blacks in the Gaithersburg facility. His figures, however, included employees in job categories other than professionals and managers. To the best of his recollection, in 1974 and 1975 none of the six or seven black DPD employees at the facility were at level 58 or above. Nonetheless, it was established that a black, Oscar Bunche, held a level 61 DPD managerial position during that time. Branch’s brief testimony, based on thin recollection of intermingled facts and figures, will support no findings of fact relevant to resolution of the issues in this case. His primary assertion, that no blacks held managerial positions, proved unfounded and there were no other aspects of his testimony to which the Court can affix any particular significance. 8. Jacqueline W. Cole Plaintiff’s next class witness, Jacqueline Cole, was very articulate and straight forward. She is obviously extremely capable and has been an exceptional performer with IBM. Without question, she deserved to be on the fast track that IBM had kept her on during her career. However, given that she is a remarkable performer, IBM has treated her most favorably and indeed her testimony may be taken to support a finding that IBM’s appraisal system is effective. Cole began working for DPD in Maryland in July 1965. During her career she has requested and received transfers on at least two occasions consistent with her husband’s movement as a college professor. From the period beginning May, 1972 until the trial of this case, Cole has been accorded forty-four months of leave. On three occasions she has left for maternity leave, and in addition, she was granted fourteen months social service leave to work in the Washington, D.C. government. Cole worked in the DPD facility in Maryland for a total of 31V2 months between December 1,1975 and September 1, 1980, the date she transferred to the Federal Systems Division. She was on leave for the remaining 28 months during that period. Her salary as of the time of trial was $67,500 a year. The primary focus of her testimony was the evaluation she received. Although she did not directly contend that she was discriminated against because of her race, she felt that certain of her appraisals were low and complained that she had been locked into a level 59 position since 1976. She pointed to a disparity in the per cent of whites rated at “1” or “2” as compared to the per cent of blacks given these same ratings. She also alluded to some minor salary problems, but generally was able to correct those with her manager. In July, 1976, Cole was promoted to a level 59 marketing manager under Don Dean. Cole was unhappy that Dean did not give her performance plan until December. She did have a performance plan still in place from her prior manager, although Cole maintained that this plan was not effective under Dean. It is not, however, an established IBM practice for a new manager to rewrite an employee performance plan. Cole was unhappy with Dean’s initial appraisal of her, a “3”, and complained to her second level manager, Lee Noel. She worked within the IBM system and was successful in obtaining a “2” reappraisal. The “3” appraisal never became part of her IBM record and was not used to administer her salary. At that time she also had a complaint with her initial marketing management bonus ($2,000.00). Dean considered her complaints and increased the bonus to between $2,700 and $2,800, admitted that a mistake had been made, and gave her the formula necessary to calculate a correct amount. Cole could not assign any racial bias as a motive behind this mistake. Cole next moved to the position of a level 59 product support manager in June, 1978, reporting to Larry deLorimier. deLorimier’s first appraisal of Cole was initially a “3”, but after her objection, he rewrote the appraisal changing it to a “2”. The Court finds that the initial appraisal was a draft, consistent with IBM practice, and after an appropriate employee/management meeting, the appraisal was changed to the satisfaction of the employee. The draft does not become part of an employee’s record at IBM and does not inhibit the employee’s career. Cole was given a “2” closeout appraisal by deLorimier, and although Cole testified at trial that she disagreed with this rating, no complaint was made at the time. Cole did speculate that she had suffered repercussions from protesting both the Dean and deLorimier appraisals. This notion was not substantiated or detailed at trial. Neither was there any evidence that Dean or deLorimier appraised similarly situated whites more favorably. Cole also complained that when she was granted social service leave, deLorimier asked her to sign a letter of understanding stating that she was not guaranteed “the same level or position” when she returned. Cole did not sign this letter until deLorimier had deleted the word “level.” deLorimier testified that the letter was simply intended to inform her that in light of potential business changes, a position at a particular job level necessarily could not be guaranteed at the conclusion of leave. deLorimier added that he did not expect Cole to return from social service leave with a promotion because she was not increasing her product skills while she was away. deLorimier did arrange for some interviews for Cole in preparation for her return to IBM. She had certain restrictions because she wished to remain in the Washington, D.C. metropolitan area and had been out of the main stream of IBM’s product line during a period of significant business change. George B. (Rick) Richardson took over as Cole’s career manager and advised her of the availability of level 59 jobs in DPD as a marketing manager, but Cole indicated she did not want such a job. After he was unable to find Cole the kind of job she wanted in DPD, Richardson arranged for interviews for her with FSD (Federal Systems Division), and she was offered two positions. She accepted a level 59 position in FSD working for Hal Horowitz in the advanced energy systems area on synthetic fuels. Richardson testified that he was aware of no jobs in DPD above a level 59 that were open in the Washington area at the time. Although Cole may not have progressed to the level that she would have liked at IBM, it was apparent that if anything held her back it was the amount of time that she spent away from the business. It is difficult to conceive that an employee earning almost $70,000 a year who has been away from the business for almost four years out of the past ten and who continued to be offered challenging positions could have a credible complaint against a company. IBM offered into evidence the leave record of other employees on the Maryland “tape” who have been promoted to either level 60 or higher positions between 1978, when Cole returned from maternity leave, and the end of 1981 — only twelve had any significant amount of leave from IBM and of those twelve, twenty-four months was the most. The Court finds that while Jackie Cole is a most capable employee who would excel in any endeavor she chose to pursue, there is no evidence that she was discriminated against on the basis of race. She has been liberally treated with respect to leave and has been able to wor