Trout v. Lehman

MacKINNON, Circuit Judge

(dissenting in part and concurring in part).

I. Standard of Review

Claiming to differentiate between this court’s review of “findings of fact” and “conclusions of law,” the opinion for the court unnecessarily restricts its scrutiny of the trial court’s decision. [Op. at 1100-1101]. Denominating the trial court’s findings of discrimination in the individual claims as primarily “factual,” the court’s opinion essentially declines to review these judgments.

Categorizing determinations by the district court as “factual” or “legal” in the context of an employment discrimination class action is not as simple as the court’s opinion suggests. Other courts have recognized the appropriate standard of review in such cases and their decisions, not recognized by the court, in my opinion provide a more reasonable guide to the appropriate review in these cases.

The Seventh Circuit has acknowledged that

[t]he statement that discrimination exists for the purposes of establishing liability under Title VII ... is as much a conclusion of law as a finding of fact. A distinction must be drawn between subsidiary facts to which the “clearly erroneous” standard applies, and the ultimate fact of discrimination necessary to trigger a statutory ... violation ....

United States v. City of Chicago, 549 F.2d 415, 425 (7th Cir.1977). In line with this pronouncement the court continued to an “independent examination” to determine whether the alleged “employment practices as a matter of law, were proscribed under Title VII .... ” Id. See also, Detroit Police Officers’ Association v. Young, 608 F.2d 671, 686 (6th Cir.1979).

Categorizing determinations by the district court as “factual” and thereby insulating them from meaningful review can be highly improper. The review employed in this dissent is distinguishable from that employed in the opinion for the court in two critical respects. First, while accepting the district court’s factual determinations, I have reviewed the district court’s application of the relevant legal standards of proof. Second, I have reviewed the district *372court’s findings of fact in support of its judgment to be certain that these findings have an evidentiary basis in the record. Therefore, this analysis is premised upon a somewhat different standard of review than that employed in the opinion for the court, supra.

II. Class Claims

A. Liability for Initial Placement and Hiring

Plaintiffs alleged that defendant engaged in a pattern or practice of discrimination against the class of women in numerous respects — “hiring, performance evaluation, job assignment, promotion and award procedures.” The trial court found the defendant liable for discrimination in hiring and/or initial placement, as well as promotion. The district court’s judgment with respect to liability for hiring and/or initial placement should be vacated and remanded for dismissal, however, because these claims of the class were not properly before the court. Neither of the class representatives (Trout and Perlingiero) had standing to claim that they were discriminated against with respect to initial hiring and/or placement. Both of these women were hired well before the effective date of Title VII;1 neither named plaintiff ever administratively challenged her hiring or initial placement; 2 and neither alleged in her complaint that she was discriminated against with respect to hiring or initial placement. Consequently, these named plaintiffs cannot represent a class challenging the defendant’s hiring or initial placement practices; they do not share an injury with the class they purport to represent. “To have standing to sue as a class representative it is essential that a plaintiff must be a part of that class, that is, he must possess the same interest and suffer the same injury shared by all members of the class he represents.” Schlesinger v. Reservists Committee to Stop the War, 418 U.S. 208, 216, 94 S.Ct. 2925, 2929, 41 L.Ed.2d 706 (1974).

It is easy to understand how the district court came to consider the hiring and initial placement issue, even though it was not properly presented. The original complaints, alleging individual and class discrimination, were filed in 1973. The theory of the case was that the defendant had engaged in a “pattern or practice” of discrimination. Even though neither of the named plaintiffs alleged that they had been discriminated against with respect to hiring or initial placement, the class-aspects of their complaints asserted that the defendant had pursued discriminatory hiring and placement practices with respect to the class of women.3 On April 6, 1973, the district court conditionally certified the class as consisting of “all past, present and future female professional technical employees of the defendant Naval Command System Support Activity.” The certification order did not specify the issues for resolution.

During the 1960s and early 1970s, the “across the board” theory of discrimination in the class action-employment discrimination context was in vogue. This theory had its origins in the Fifth Circuit,4 and essen*373tially permitted a plaintiff who alleged individual discrimination because of a particular employment practice to litigate class claims which included allegations of other, different discriminatory employment practices. Class claims which were broader than those asserted by the named plaintiff were considered a permissible “across the board” attack on the defendant’s employment practices. Long v. Sapp, 502 F.2d 34, 40-43 (5th Cir.1974); Huff v. N.D. Cass Company of Alabama, 485 F.2d 710, 714 (5th Cir.1973); and Carr v. Conoco Plastics, Inc., 423 F.2d 57, 62-66 (5th Cir.), cert. denied, 400 U.S. 951, 91 S.Ct. 241, 27 L.Ed.2d 257 (1970).

As jurisprudence on this subject developed, the “across the board” approach was generally repudiated5 and the Supreme Court cautioned courts that the typicality requirement of Rule 23 of the Federal Rules of Civil Procedure and considerations of standing mandated that a named plaintiff must share the same injury as the class he purports to represent. In East Texas Motor Freight System, Inc. v. Rodriguez, 431 U.S. 395, 97 S.Ct. 1891, 52 L.Ed.2d 453 (1977), the Court held that plaintiffs alleging discrimination in denial of transfer could not maintain a class action challenging hiring by the defendant-employer. The Court reversed the Fifth Circuit’s sua sponte class certification and imposition of class-wide liability, and held that these plaintiffs could not represent a class whose alleged injury they did not share. Numerous subsequent decisions recognized and applied the principle announced in Rodriguez.6 Named plaintiffs cannot represent a class to litigate an issue which they themselves do not have standing to pursue.

On June 18, 1979, the Trout class was “fully certified” by the trial court. The conditional order of class certification was redefined to specify the class as follows.

That the class is hereby determined to consist of all female professional technical employees employed by the Naval Command System Support Activity or the Navy Regional Data Automation Center at any time between June 6, 1972 and June 4, 1979.

Again, the court did not specify the scope of the class issues, and does not appear to have *374re-evaluated the propriety of these plaintiffs continuing to represent a class of women challenging discrimination in hiring and/or initial placement. However, by this date it was clear that a named plaintiff could only litigate, on behalf of a class, claims which she shared. Therefore, these plaintiffs could not litigate claims of discrimination in hiring and/or initial promotion on behalf of this class. As the Supreme Court “has repeatedly held, a class representative must be part of the class and ‘possess the same interest and suffer the same injury’ as the class members. Schlesinger v. Reservists Committee to Stop the War, 418 U.S. 208, 216, 94 S.Ct. 2925, 2929, 41 L.Ed.2d 706.” East Texas Motor Freight, supra, 431 U.S. at 403, 97 S.Ct. at 1896. It is unquestioned that Trout and Perlingiero were not members of the class of discriminatees (applicants) they sought to represent. Therefore, their class claims could not encompass allegations of discrimination in hiring and/or initial placement.

That portion of the judgment against the defendant based upon the finding of class-wide discrimination in hiring and/or initial grade placement should therefore be vacated and the district court directed to dismiss those class claims.

In addition, the district court’s improper consideration of claims of class-wide hiring and initial placement discrimination, which functions were exercised by other agencies, so permeated the trial court’s evaluation of the evidence presented that its judgment of liability for discrimination in promotion cannot stand. As discussed infra, the promotion claim should be remanded to the district court for retrial. The sole issue for consideration, to which all proof must then be relevant, would be whether the defendant discriminated against women as a class in promotions during the relevant time period.

B. Promotion Claims — Proper Evaluation of this Claim at Retrial

A fundamental problem with the conduct of this case in the district court is that some basic tenants of employment discrimination-class action case law were ignored. The trial court appears to have confused the respective burdens of proof, ultimately finding against the defendant because it did not disprove the plaintiffs’ allegations. Such procedure improperly allocates the burden of proof.7

Two theories for proof of employment discrimination in violation of Title VII have been recognized by the Court — disparate treatment or disparate impact. International Brotherhood of Teamsters v. United States, 431 U.S. 324, 335-36 n. 15, 97 S.Ct. 1843, 1854-55 n. 15, 52 L.Ed.2d 396 (1977). In this case the plaintiff alleges that the employer followed a “pattern or practice” of disparate treatment of female employees that was discriminatory. To prevail upon a disparate treatment claim, plaintiffs must prove that a particular group (females) was regularly treated in a discriminatory fashion, and that this treatment was intentional — motive is essential.8 Proof of disparate *375treatment may be by statistics or by instances of individual discrimination, or both.

In individual disparate treatment cases the Court has established “stages” of proof which are intended to simplify the factfinder’s analysis of the evidence presented. The Court has emphasized that these “stages” do not alter the traditional burden of proof in a civil case.9 A careful reading of Texas Department of Community Affairs v. Burdine, 450 U.S. 248, 101 S.Ct. 1089, 67 L.Ed.2d 207 (1981) and its predecessors, highlights the conclusion that the Court was addressing the method of proving discrimination in the case of an individual plaintiff. The “stages” which the Court described cannot be mechanically applied to the case of class litigation of alleged employment discrimination. This is the error of the district court. (And the court’s opinion here). As recognized in Vuyanich v. Republic National Bank of Dallas, 521 F.Supp. 656 (N.D.Tex.1981), proof of employment discrimination in the class action context differs from that offered in the individual plaintiff case. The three “stages” applicable in the trial of an individual plaintiff’s claim are merged into two in class litigation: (1) The plaintiff initially proves both a “prima facie” case and discrimination by a preponderance of the evidence. (2) Then, the defendant’s proof must cast sufficient doubt on the plaintiff’s proof (and statistics) “to cause the trier of fact to conclude that the plaintiff has not proved discrimination by a preponderance of the evidence.” Id. at 663.

The district court in Trout was so concerned with the allocation of the “stages” of proof, focusing upon whether the plaintiffs established a prima facie case and whether the defendant rebutted that case, that it lost sight of the basic principle that plaintiffs were ultimately required to prove intentional discrimination by a preponderance of the evidence. It is submitted that, based upon the evidence presented, the ultimate burden of proof was not met.

Statements in the opinion for the court suggest a recognition of the fact that establishing a prima facie case might not always be the equivalent of proving discrimination by a preponderance of the evidence. At p. 1101 the opinion states “while plaintiffs must demonstrate to the court’s satisfaction that their statistical comparisons are meaningful, they need not present a perfect statistical analysis at the prima facie case stage.” (Emphasis added). This statement may constitute a recognition that additional proof may be required at some later stage in order to prevail on the merits. However, in this case, no additional proof was forthcoming — and the “inference” of discrimination which the district court drew from the plaintiffs’ statistics became sufficiently probative for plaintiffs to prevail upon their claim of discrimination by a preponderance of the evidence. Upon examining the plaintiffs’ evidence, I cannot agree that the evidence which was sufficient to establish a prima facie showing was also sufficient to establish liability.

The only “facts” supporting the plaintiffs’ claim were that (1) as undisputed, “the average salary for female employees at NARDAC has throughout the relevant period been considerably lower than that of males,” 517 F.Supp. at 878; (2) that women were generally overrepresented at the lower grade positions, id.; and (3) that the salary differential could only be accounted for by reference to the gender of the employee, id. at 879. Plaintiffs did not establish whether these facts were due to discrimination in hiring and initial placement (women being consistently hired only at the lower levels); or although hired properly, women were not being promoted as equitably as men; or whether because of a low rate of turnover, the effects of pre-1972 discrimination in hiring and promotion have *376not been eliminated, even though the defendant’s employment practices are now neutral. Simply demonstrating that women earn less than men in this division, and that the earnings differential may only be explained by reference to gender, certainly suggests that discrimination has occurred, or may be occurring. But those facts do not, without more, prove discrimination in hiring or promotion.

Having found that the plaintiffs’ statistics were sufficient to establish a prima facie case, the district court placed an improper burden upon the defendant to “rebut” such proof. It was incumbent upon the defendant only to raise genuine issues as to the sufficiency of the plaintiffs’ evidence.10 Presentation of such evidence by defendant would then return the “scales to equipoise,” requiring the plaintiff to prove discrimination in order to prevail. To require any more proof from a defendant in response to the plaintiff’s prima facie showing impermissibly shifts the burden of proof traditionally required in a civil case.

Contrary to the district court’s conclusion, the defendant made three specific challenges to plaintiffs’ statistics which raised a serious question as to the accuracy and/or sufficiency of the plaintiffs’ proof. The defendant argued

1. that the statistics attributed responsibility to the defendant for hiring and initial placements, such decisions not being within the defendant’s control;
2. that the statistics included the effects of time-barred acts; and
3.that the statistics did not take into account minimum objective qualifications.

These challenges to the accuracy of the plaintiffs’ proof are designed to “discredit the plaintiff’s statistics by demonstrating flaws in the assumptions, data or analyses presented.” Vuyanich v. Republic National Bank of Dallas, 521 F.Supp. 656, 663 (N.D. Tex.1981).

The opinion for the court concedes that the defendant successfully challenged the plaintiffs’ proof of discrimination in hiring and initial placement, and yet this is not considered adequate to raise a “question” as to the sufficiency of the plaintiffs’ statistics on the whole. The plaintiffs did not differentiate between their statistical evidence which tended to prove discrimination in hiring, and that which tended to prove discrimination in promotion. Based upon this lack of distinction, the defendant objected that the inference of discrimination which was drawn from these statistics was not attributable to it, if such inference was based upon alleged discriminatory hiring. The defendant’s objection to plaintiffs’ statistics, based upon its denial of liability for hiring and/or initial placement decisions, did raise a genuine issue as to the sufficiency of plaintiffs’ proof.

The government’s second challenge was that plaintiffs’ statistics included pre-1972 data and that, therefore, any finding of discrimination based upon this data was not actionable.11 The district court rejected *377this challenge stating that although discrimination prior to 1972 is not directly actionable, “in some circumstances (evidence of such conduct) can support the inference that such discrimination continued.” 517 F.2d at 880. Suggesting that this defendant had discriminated prior to 1972, the court then stated that “such discrimination before 1972, even if coupled with neutral employment practices since then, produced actionable continuing discriminatory effects .... ” Id. (Emphasis added). This is an incorrect application of the law.

In Hazelwood School District v. United States, 433 U.S. 299, 97 S.Ct. 2736, 53 L.Ed.2d 768 (1977), it was held that an employer who discriminated before 1972, but who ceased upon enactment of the statute would not have violated the Act if after 1972 all employment decisions were made in a non-discriminatory fashion. Thus, if preAct practices produced discrimination, but discrimination ceased in 1972, the employer would not be liable for the “frozen-in” effects of discrimination. In my opinion the above-quoted statement by the district court to the contrary is erroneous.

This error in applying the law is not harmless in the context of this case. The government challenged the discrimination inferred from the plaintiffs’ statistics by asserting that it was the result of pre-1972 practices. Therefore, it was incumbent upon the plaintiffs to prove that the discrimination suggested by their statistics was not due to non-actionable pre-Act conduct. This challenge to the plaintiffs’ statistics is valid and sufficient to raise a genuine issue as to the accuracy of the plaintiffs’ statistical proof. The district court should not have disregarded the defendant’s argument. 517 F.2d 879-80.

Two of the three government challenges to the accuracy of the plaintiffs’ statistics were valid.12 And yet, the district court did not find this sufficient to raise a question regarding plaintiffs’ initial showing so as to require plaintiffs to introduce additional, more accurate and refined proof. Clearly the district court placed too great a burden of proof on the defendant, and based its ultimate finding of liability upon an insufficient showing by the plaintiffs. On a retrial plaintiffs must fully satisfy their burden of proof.

III. Individual Claims

A. Perlingiero

1. Denial of Promotion

This finding of liability for discriminatory denial of promotion should be reversed because the plaintiff failed, as a matter of law, to prove discrimination by a preponderance of the evidence.

Even though on appeal, the government specifically challenged both the district court’s findings of ultimate liability and its finding that plaintiff Perlingiero had successfully established a prima facie case, without any analysis, the court’s opinion “found no basis for upsetting the District Court’s conclusions” on this issue. An examination of the record reveals that the government’s challenge is well-taken.

In this Circuit, to establish a prima facie case of discriminatory refusal to promote, the plaintiff must

show that she belongs to a protected group, that she was qualified for and applied for a promotion, that she was considered for and denied the promotion, and that other employees of similar qualifications who were not members of the protected group were indeed promoted at the time the plaintiff’s request for promotion was denied.

Bundy v. Jackson, 641 F.2d 934, 951 (D.C. Cir.1981).

Herein, the district court found that:

*378a new layer of three supervisory positions was established at the GS-14 level; Ms. Perlingiero applied for all three; and all of them were again given to white males who were junior to her.

517 F.Supp. at 891.

This statement embodies the requisite elements of proof to establish a prima facie claim of discrimination in promotion.13

“To meet a prima facie case, a defendant must present with clarity and reasonable specificity a legitimate, nondiscriminatory reason for the action it took.” Valentino v. United States Postal Service, 674 F.2d 56, 63 (D.C.Cir.1982). This “burden” on the defendant is not one of persuasion, but merely of “production.” The defendant need only articulate a legitimate explanation for its choice; an employer is not required to “persuade the court that it was actually motivated by the proffered reasons.” Texas Department of Community Affairs v. Burdine, 450 U.S. 248, 254, 101 S.Ct. 1089, 1094, 67 L.Ed.2d 207 (1981). (Emphasis added). The Supreme Court has emphasized the nature of this “burden” on the defendant by reminding courts that “[t]he ultimate burden of persuading the trier of fact that the defendant intentionally discriminated against the plaintiff remains at all times with the plaintiff.” Id. at 253, 101 S.Ct. at 1093.

Without explicating the facts supporting his conclusion, the district judge simply found that the defendant failed to rebut the plaintiff’s prima facie case. However, as a matter of law, the defendant clearly rebutted the inference of discrimination by articulating a legitimate, nondiscriminatory reason for this plaintiff’s non-promotion. Testimony by the defendant’s witness revealed that of the three positions available, two were selected at one point in time, and another selected later. The applicants for the positions were evaluated by a “rating and ranking panel.” In both instances, plaintiff Perlingiero’s name was not forwarded to the selecting officer on the list of “best qualified” candidates. Therefore, if she was discriminated against in this promotion decision, it was by the “rating and ranking” panel; testimony reveals, however, that each panel had women members.14 The defendant’s witness also explained why Perlingiero was not qualified to be recommended by the “rating and ranking” panel. The plaintiff offered no evidence to contradict this testimony.

In light of the defendant’s explanation of the reasons for Perlingiero’s non-promotion, and the showing that the decision-making process was fair, the defendant, as a matter of law, successfully rebutted plaintiff’s prima facie case. To require the defendant to produce additional “proof” would contradict the Court’s requirement in Burdine and alter the traditional burdens of proof.

*379Once the defendant meets the plaintiffs prima facie proof, the plaintiff has “the opportunity to demonstrate that the proffered reason was not the true reason for the employment decision.” Burdine, supra, at 256, 101 S.Ct. at 1095. The plaintiff must carry the “ultimate burden” of persuading the court that “she has been the victim of intentional discrimination.” Id. Plaintiffs offered no additional evidence to demonstrate that the defendant’s explanation was merely pretextual, or to prove actual discriminatory treatment in this employment decision.

Reviewing all the evidence introduced by the plaintiff on this issue, in my opinion it is insufficient to sustain the legal conclusion that Perlingiero was intentionally discriminated against when she was not promoted to the GS-14 position in 1979.

2. Additional Alleged Acts of Discrimination

In support of its finding of liability for discrimination against Perlingiero the district court states that

[s]he was repeatedly passed over for promotion in favor of males, some of whom had inferior credentials or were junior to her, and at least one of whom was clearly preselected for the position.

This conclusion is clearly erroneous as there is no evidence in the record to support it. In fact, the relevant evidence, from the plaintiff herself, contradicts this conclusion.

On cross-examination the plaintiff was unable to identify any promotions for which she had applied, with the exception of one in 1971 (prior to the effective date of Title VII) and the GS-14 position in 1979, discussed supra. To be repeatedly “passed over” for promotion within the Civil Service system one must have applied for a promotion.

For the foregoing reasons, the judgment in favor of Perlingiero must be vacated. This analysis is guided by the requirement that “as a matter of law” certain facts must be proven to prevail upon a claim of employment discrimination. I am compelled to disagree with the trial judge’s judgment of liability (and the court’s opinion affirming) because I cannot find evidentiary support in the record which clearly establishes that plaintiff has proved the legal requisites necessary to support her claim.

B. Bach

Reviewing the record and the district court’s findings and conclusions on Bach’s claim, I agree with the court’s opinion affirming the judgment against the defendant.

Conclusion

In my view the court’s opinion in material respects “glosses-over” serious problems with the judgment of the district court. I thus dissent to the extent indicated above.

. In her complaint, plaintiff Trout states that she was hired in March 1967. Trout Complaint ¶ 7. Plaintiff Perlingiero states that she was hired in October 1967. Perlingiero Complaint ¶ 67.

. The filing of a “charge” with the Equal Employment Opportunity Commission (EEOC) is a prerequisite to suit under Title VII. 42 U.S.C. § 2000e-16 (1976).

. Count One of the Trout Complaint alleges:

34. There exists at NAVCOSSACT a continuing and pervasive pattern of discrimination against women individually and as a class with respect to the recruiting and hiring of professional technical employees.

.The first “across the board” case which clearly held that a plaintiff could represent a class challenging alleged discriminatory employment practices to which he (individual plaintiff) had not actually been subjected was Johnson v. Georgia Highway Express, Inc., 417 F.2d 1122, 1124 (5th Cir.1969).

The Johnson court’s “across the board” approach was endorsed by commentators, Developments in the Law — Employment Discrimination and Title VII of the Civil Rights Act of 1964, 84 Harv.L.Rev. 1109, 1218-22 (1971), and applied by trial courts, Mack v. General Elec*373tric Co., 329 F.Supp. 72, 73-76 (E.D.Pa.1971); Wilson v. Monsanto Co., 315 F.Supp. 977, 979 (E.D.La.1970); and Bateman v. Retail Credit Co., 320 F.Supp. 1115, 1116 (N.D.Ga.1970).

Another Fifth Circuit case frequently cited as a forerunner in developing the “across the board” theory of class action-employment discrimination is Oatis v. Crown Zelierbach Corp., 398 F.2d 496 (5th Cir. 1968). In Oatis, however, the named plaintiffs alleged that they had, in fact, been injured by the same employment practices challenged by the class. Judge Bell, writing for the court, endorsed allowing a “broad” attack against the defendant’s employment practices, but recognized that the “issues that may be raised by plaintiff in ... a class action are those issues that he has standing to raise [,] i.e., the issues as to which he is aggrieved .... ” Id. at 499 (Emphasis added). Thus, subsequent reliance upon Oatis for the proposition that in an “across the board” attack a named-plaintiff may assert class claims based upon injuries which he did not suffer is misplaced. The Oatis court recognized that the issues raised in a class action must be identical to those issues which the named plaintiff has standing to raise.

. Courts of the Fifth Circuit continue to adhere to an “across the board” theory of standing in class suits, and attempt to distinguish the Court’s decision in East Texas Motor Freight System, Inc. v. Rodriguez, 431 U.S. 395, 97 S.Ct. 1891, 52 L.Ed.2d 453 (1977). For a discussion of the Fifth Circuit’s adherence to this theory, see Vuyanich v. Republic National Bank of Dallas, 505 F.Supp. 224, 234-37 (N.D. Tex.1980).

. Abron v. Black & Decker (U.S.) Inc., 654 F.2d 951 (4th Cir.1981) (district court improperly found class-wide liability for racial discrimination in “recruitment; job classification; hiring; assignment; promotion; transfer; discipline; discharge; benefits; apprenticeship training programs; compensation; terms, conditions and privileges of employment” when only claim presented by representative plaintiff was for discrimination with regard to a specific, temporary transfer); DeGrace v. Rumsfeld, 614 F.2d 796 (1st Cir.1980) (plaintiff who did not claim that he had been discriminated against in the hiring process and whose “individual grievance — termination—did not implicate hiring procedures” could not represent class alleging racially discriminatory hiring); and Hill v. Western Elec. Co., Inc., 596 F.2d 99 (4th Cir. 1979) (plaintiffs alleging racial discrimination in work assignments and promotions cannot represent class challenging denial of employment).

. In addition to not distinguishing between the respective burdens of proof and production incumbent upon a plaintiff and defendant, it appears that the court in several instances did not properly scrutinize the evidence.

This action was tried as a consolidated case, comprised of a class action and five individual actions. The court recognized that

[t]he allegations made by these plaintiffs, and particularly those of Ms. Trout, are at best confusing in that major and minor complaints are indiscriminately recited, sometimes without a clear delineation of what is claimed to be sex discrimination or retaliation and what is contended to be mere supporting data.

517 F.Supp. at 888 n. 55.

This confusion in plaintiffs’ case was not completely unravelled by the court, both as to the individual claims (discussed infra) and the class claims. The court failed to distinguish between that statistical evidence which tended to prove plaintiffs’ discriminatory hiring claims and that which went to the promotion claims.

. In a “pattern or practice” case, the plaintiff must prove:

more than the mere occurrence of isolated or “accidental” or sporadic discriminatory acts. [The plaintiff must] establish by a preponderance of the evidence that ... discrimination was the [employer’s] standard operating procedure — the regular rather than the unusual practice.

*375Int’l Bhd. of Teamsters v. United States, 431 U.S. 324, 336, 97 S.Ct. 1843, 1855, 52 L.Ed.2d 396 (1977) (footnote omitted).

. “The ultimate burden of persuading the trier of fact that the defendant intentionally discriminated against the plaintiff remains at all times with the plaintiff.” Burdine, 450 U.S. at 253, 101 S.Ct. at 1093 (footnote omitted).

. Discussing the burden which falls upon an employer to respond to the plaintiff’s prima facie proof in the class action context, the Supreme Court has explained:

The burden then shifts to the employer to defeat the prima facie showing of a pattern or practice by demonstrating that the [plaintiffs] proof is either inaccurate or insignificant.

Teamsters, supra, 433 U.S. at 360, 97 S.Ct. at 1867 (Emphasis added).

The opinion for the court suggests that the ■ defendant failed to meet the plaintiffs’ prima facie showing because it failed to introduce an acceptable statistical showing which would prove discrimination was not occurring. While the defendant was certainly free to introduce such proof, I believe that such proof was not necessary; to require such proof impermissibly burdens the defendant. As stated by the Court in Teamsters, supra, the defendant need only clearly demonstrate inaccuracies in the plaintiff’s proof, which then requires the plaintiff to respond and prove his case. A defendant may meet plaintiff’s prima facie showing by either presenting its own set of acceptable statistics or by “other proof undermining plaintiff’s claims.” Segar v. Civiletti, 508 F.Supp. 690, 712 (D.D.C.1981).

. In United Airlines, Inc. v. Evans, 431 U.S. 553, 97 S.Ct. 1885, 52 L.Ed.2d 571 (1977), the Court stated that while evidence of pre-Act violations by the employer might be “relevant background evidence,” such acts were “merely *377... unfortunate event[s] in history which ha[ve] no present legal consequences.” Id. at 558, 97 S.Ct. at 1889 (Emphasis added). Thus, this defendant’s objection to the inclusion of pre-Act practices in plaintiffs’ statistics was based upon sound authority.

. I defer to the district court’s determination, upheld by the opinion for the court, that plaintiffs’ statistical proxies adequately reflected the minimum objective qualifications. Op. at 1102-1103.

. Because they are not “clearly erroneous,” I defer to the district judge’s factual findings which support the legal conclusion that a prima facie case was established. However, I am compelled to note that the plaintiffs evidence tending to establish a prima facie case was minimal. The plaintiff did not clearly identify who received the three promotions, and provided no evidence to support the court’s finding that the individuals who were promoted were “junior to her.” When asked how many promotions there had been in her code (unit) the plaintiff testified:

there were four in my department, three of them went to white males, one person in particular that I knew fairly well who was a GS-9 in 1967 when I was a 12 was one of those promoted to a GS-14.
Tr. at 252. (Emphasis added.)

The plaintiff also introduced a letter from the Department of Defense’s Office of Personnel and Security (dated 30 November 1979) informing her that she was not selected for the GS-334-14/15 position for which she applied. The letter stated

you meet the qualifications required by this position, but you were not rated among the “best qualified.”
I Jt.App. 324.

The foregoing is the only evidence cited by appellee, upon which the court could have based its conclusion that Perlingiero was discriminatorily denied promotion. Independent examination of the record has failed to reveal any additional evidence to support the court’s conclusion.

. In fact, Ms. Trout, the plaintiff in a companion case, was a member of the second “rating and ranking” panel which did not recommend Ms. Perlingiero for promotion.