Munoz v. Orr

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
_________________________________

No. 97-50736
_________________________________

JESUS G. MUÑOZ; MANUEL MUÑOZ, JR.,

Plaintiffs-Appellants,

v.

VERNE ORR; ET AL.,
Defendants,

F. WHITTEN PETERS, SECRETARY OF U.S. DEPARTMENT OF
THE AIR FORCE,

Defendant-Appellee.

---------------------------------
Appeals from the United States District Court
for the Western District of Texas
---------------------------------
January 5, 2000

Before JOLLY, BARKSDALE and BENAVIDES, Circuit Judges.

BENAVIDES, Circuit Judge:

This appeal represents the final phase of what has been

protracted and difficult litigation for both sides. Plaintiffs

allege that the civilian employee promotion system used at Kelly

Air Force Base has operated to discriminate against Hispanic

males. After a prolonged discovery and motions period, the

district court granted the defendant’s motion for summary

judgment and plaintiffs appealed. Upon initial submission, we

ordered a limited remand so that the district court could explain

its reasoning with respect to its summary judgment. The district

court prepared an order explaining its decision and the parties

filed supplemental briefs. We must now decide the issue of
whether the district court erred in granting summary judgment for

the defendant, given the limited evidence before it.

I. Factual and Procedural History

Plaintiffs Jesus G. Muñoz and Manuel Muñoz, Jr. are Hispanic

males, brothers, employed as part of the civilian workforce at

Kelly Air Force Base near San Antonio, Texas [Kelly]. They

brought this suit on behalf of themselves and all Hispanic male

civilian employees at Kelly under Federal Rule of Civil Procedure

23(b)(2). Plaintiffs allege that the promotion system used by

the Air Force for civilian employees has a disparate impact on

Hispanic males, i.e. that the system results in fewer Hispanic

males receiving promotions than would be expected based on the

proportion of the civilian workforce at Kelly that they comprise.

An explanation of plaintiffs’ claims first requires an

understanding of the general context in which hiring and

promotion takes place at Kelly. Civilian employment at Kelly is

organized on the “GS” (General Service) scale, a salary and

promotions grid in common use throughout civilian federal

employment. Each GS level, or grade, represents a salary range.

The GS level to which an employee is assigned depends upon such

factors as education level, skill level, time in service, and

degree of authority of the position he occupies. Over the course

of a career in federal civilian employment, an employee may

occupy several different GS levels or steps within a GS level.

--2--
Certain GS levels are not open to employees without particular

qualifications (e.g. a college degree or its equivalent). As a

general matter, each job opening is allocated to a particular GS

level or range of levels, thus setting the maximum salary that

position could accrue. A federal civilian job also has skills

requirements and responsibilities attached to it that in part

define its GS range.

At Kelly, civilian promotions are handled in part by a Merit

Promotion Plan that includes an automated system called the

“Personnel Placement and Referral System,” or PPRS. Under PPRS,

employees need not submit applications for promotions. Rather,

as a position becomes available, PPRS considers all eligible

employees within the defined area of consideration for the

position (e.g. Kelly Air Force Base or the entire Air Force).

PPRS recursively eliminates employees under increasingly specific

job requirements until the desired number of candidates is

reached. PPRS thus works like a funnel, at first considering all

nominally eligible employees for a promotion and then narrowing

the field based on successively more detailed requirements until

a short, ranked list is generated. Each stage of this narrowing

is known as a “progression level factor,” or PLF. Ties between

employees are broken by reference to appraisal scores, awards,

and service computation date, in order. The list is hand-checked

and then forwarded to the selecting official, who chooses one of

the employees for the promotion.

The automated program is not without subjective elements.

--3--
At the beginning of the promotion process, three-person teams

establish and rank the job skills relevant to the position. This

ranked list is called a “Promotion Evaluation Pattern,” or PEP.

The PLFs used by the automated program to narrow the field for a

given promotion are derived from these PEPs. Furthermore, within

the automated PPRS program, ties between eligible employees are

broken in part by appraisal scores and awards and service

computation dates. An employee’s appraisal scores and receipt of

any awards depend, to a large degree, on the discretion of his

supervisors. Lastly, after a finite list of names for a

promotion has been prepared by the PPRS, a selecting officer

chooses one employee from the group. Though the officer’s range

of choice is limited to the list derived from the PPRS, the

actual selection from within the group is left to the selecting

officer’s discretion. Thus, promotions at Kelly comprise both

subjective and objective components that are significantly

intertwined.

Plaintiffs filed this action in 1985, alleging sex and

national origin discrimination in violation of Title VII of the

Civil Rights Act of 1964, as amended, 42 U.S.C. § 2000 et seq.

Plaintiffs filed this case as a class action under Federal Rule

of Civil Procedure 23(b)(2) on behalf of themselves and all other

Hispanic male civilian employees, contending that the promotion

system at Kelly had an adverse disparate impact on Hispanic

--4--
males.1 In February of 1989, the district court granted summary

judgment for defendant, finding that plaintiffs had failed to

exhaust their administrative remedies. This Court reversed that

initial summary judgment and remanded for further proceedings.

Muñoz v. Aldridge, 894 F.2d 1489 (5th Cir. 1990).

On remand, the case was referred to a magistrate judge who

held a class certification hearing and then recommended that the

case be certified as a class action. The class was defined as

“all Hispanic male employees, GS-09 to GS-14 at the SA-ALC, who

on or after 2/26/80 were eligible for promotion to positions at

grade GS-11 and above at SA-ALC which are covered by Merit

Promotion Certificates produced by the Central Civilian Personnel

Office at SA-ALC, up to and including the date of 09/26/91.”2

The class was certified in accordance with the magistrate’s

report.

During discovery, plaintiffs sought certain information

regarding the Air Force’s promotion procedures, including access

to the algorithm used in the automated PPRS process. After an in

camera review of the algorithm, the district court denied

plaintiffs’ request. No objections were filed to that denial.

1
Plaintiffs’ focus has shifted somewhat over time. In briefs on
this appeal, they contend that they have brought disparate impact
and disparate treatment, as well as both individual and class
claims.
2
The SA-ALC referred to in the class definition is the San Antonio
Air Logistics Command, the employer of the class members working at
Kelly Air Force Base. Merit Promotion Certificates are issued as
part of the Merit Promotion Plan, the promotion system which
plaintiffs challenge and of which the PPRS is a part.

--5--
Experts for both sides filed reports. Discovery was re-opened in

order to allow plaintiffs’ expert, Dr. Benz, to file two

additional reports on which he was afterwards deposed by the

defense. Plaintiffs also submitted affidavits from certain class

members explaining their personal experiences with the promotion

system at Kelly. Two plaintiffs, Manuel Muñoz, Jr. and Michael

Galvan, submitted additional affidavits containing partial

analyses of Kelly’s promotion data. After discovery was closed

for the second time, upon defendant’s motion, the district court

ordered summary judgment against plaintiffs.

Plaintiffs appealed the summary judgment to this court. We

ordered a limited remand so that the district court could explain

its reasoning. We now have before us the original appeal, the

district court’s order explaining its reasons for granting

summary judgment, and supplemental briefs filed by the parties in

response to the district court’s explanation.

II. Analysis

The primary issues raised in this case are whether the

district court properly excluded plaintiffs’ expert’s affidavits

as being unreliable, whether plaintiffs’ case should survive

summary judgment even without their expert’s statistical

evidence, and whether any individual claims brought by plaintiffs

survive the summary judgment order. Plaintiffs also argue that

various rulings during the discovery period improperly deprived

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them of the opportunity to develop their case.

The litigation in the trial court has concentrated on

plaintiffs’ disparate impact class claims. As discussed below,

issues have been raised in this appeal regarding a disparate

treatment class claim and both disparate impact and disparate

treatment individual claims.

In the context of Title VII litigation, we recognize two

types of discrimination claims: disparate treatment and

disparate impact. Disparate treatment refers to deliberate

discrimination in the terms or conditions of employment, in this

case, promotion, on account of race, national origin, or gender.

The prima facie elements of a claim for disparate treatment are:

(1) that the plaintiff is a member of a protected class under the

statute; (2) that he applied and was qualified for a job or

promotion for which his employer was seeking applicants; (3)

that, despite his qualifications, he was rejected; (4) that

afterwards the position remained open and the employer continued

to look for candidates with plaintiff’s qualifications. See

McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802 (1973).

Once that showing has been made, the burden of production

shifts to the employer to articulate a legitimate, non-

discriminatory reason for the employment action. See id. at 802-

03. The burden of persuasion, however, remains at all times with

the plaintiff. See Texas Dept. of Community Affairs v. Burdine,

405 U.S. 248, 253 (1981). In order to win his disparate

treatment claim, the plaintiff must then demonstrate that the

--7--
reason articulated by the employer was pretextual, see McDonnell

Douglas, 411 U.S. at 805, meaning a pretext for discrimination,

per se. See St. Mary’s Honor Ctr. v. Hicks, 509 U.S. 502, 510-12

(1993). The plaintiff still bears the burden of showing intent

on the employer’s part. See id.

Disparate treatment claims can be brought as class actions

as well. Plaintiffs in a class action disparate treatment case

must show a “pattern or practice” of discrimination by the

employer, i.e. that “racial discrimination was the company’s

standard operating procedure–the regular rather than the unusual

practice.” Teamsters v. United States, 431 U.S. 324, 336 (1977).

Proving a pattern or practice is necessary to establishing a

prima facie case in a disparate treatment class action: “Proving

isolated or sporadic discriminatory acts by the employer is

insufficient to establish a prima facie case . . . .” Cooper v.

Federal Reserve Bank of Richmond, 467 U.S. 867, 875-76 (1984).

Disparate impact claims, recognized in Griggs v. Duke Power

Co., 401 U.S. 424 (1971), do not require proof of intent to

discriminate. Instead, they focus on facially neutral employment

practices that create such statistical disparities disadvantaging

members of a protected group that they are “functionally

equivalent to intentional discrimination.” Watson v. Fort Worth

Bank and Trust, 487 U.S. 977, 987 (1988). Plaintiffs must

identify specific practices as being responsible for any observed

disparities, see Johnson v. Uncle Ben’s, Inc., 965 F.2d 1363,

1367 (5th Cir. 1992), cert. denied, 511 U.S. 1068 (1994), and

--8--
must conduct a systemic analysis of those employment practices in

order to establish their case. See Black Fire Fighters Ass’n v.

City of Dallas, 905 F.2d 63, 63 (5th Cir. 1990). Disparate

impact claims may be brought by either individual plaintiffs or a

class. In either case, the evidence will focus on the degree of

statistical disparity between protected and non-protected workers

in regards to employment or promotion.

A. Standard of Review

We review a grant of summary judgment de novo. See Frazier

v. Garrison Indep. Sch. Dist., 980 F.2d 1514,1520 (5th Cir.

1993); E.E.O.C. v. Southern Publishing Co., 894 F.2d 785, 789

(5th Cir. 1990). Exclusion of expert testimony under Federal

Rules of Evidence Rule 702 is within the traditional discretion

of the trial court, however, see Daubert v. Merrell Dow Pharm.,

Inc., 509 U.S. 579, 592-93 (1993), and we review it only for an

abuse of discretion which amounts to manifest error. See Boyd v.

State Farm Ins. Cos., 158 F.3d 326, 331 (5th Cir. 1998) (“With

respect to expert testimony offered in the summary judgment

context, the trial court has broad discretion to rule on the

admissibility of the expert’s evidence and its ruling must be

sustained unless manifestly erroneous”). We also review orders

involving discovery under a deferential abuse of discretion

standard. See Geiserman v. MacDonald, 893 F.2d 787, 789 (5th

Cir. 1990); see also Hodges v. United States, 597 F.2d 1014, 1018

(5th Cir. 1979).

--9--
 Because this case involves the exclusion of expert testimony

for the purposes of a summary judgment determination, the

applicable standards of review overlap somewhat. We will

therefore review the district court’s exclusion of plaintiffs’

expert’s evidence and all discovery-related rulings for abuse of

discretion, and then review de novo the grant of summary judgment

based on the evidence properly before the district court. See

General Elec. Co. v. Joiner, 522 U.S. 136, 118 S.Ct. 512, 517

(1997) (“The question of admissibility of expert testimony is not

. . . an issue of fact, and is reviewable under the abuse of

discretion standard”); Curtis v. M & S Petroleum, Inc., 174 F.3d

661, 667-68 (5th Cir. 1999) (“We must first review the trial

court’s evidentiary rulings under an abuse of discretion

standard. . . . Then, with the record defined, we must review de

novo the order granting summary judgment as a matter of law”).

B. Exclusion of plaintiffs’ expert evidence

Claims of disparate impact under Title VII must, of

necessity, rely heavily on statistical proof. See Watson v. Fort

Worth Bank and Trust, 487 U.S. 977, 987 (1988). Plaintiffs in

this case have relied almost exclusively on the statistical

analysis contained in the affidavits and testimony of their sole

expert, Dr. Benz. On limited remand, the district court

explained that it found Dr. Benz’ analysis to be unreliable and

--10--
so did not consider it in reaching the summary judgment ruling.3

The district court acted well within its discretion in

evaluating the reliability of Dr. Benz’ evidence at the summary

judgment stage: “In considering a Rule 56(c) motion opposed by

expert testimony, the trial court has broad discretion to rule on

the admissibility of the expert’s evidence . . . [and] may

inquire into the reliability and foundation of any expert’s

opinion . . . .” Washington v. Armstrong World Indus., Inc., 839

F.2d 1121, 1123 (5th Cir. 1988).

If the basis for an expert’s opinion is clearly unreliable,

the district court may disregard that opinion in deciding whether

a party has created a genuine issue of material fact. See Berry

v. Armstrong Rubber Co., 989 F.2d 822, 824 (5th Cir. 1993), cert.

denied sub nom, Cooper v. Armstrong Rubber Co., 510 U.S. 1117

(1994); see also Daubert v. Merrell Dow Pharmaceuticals, Inc.,

3
Defendant contends that plaintiffs waived their objections to the
exclusion of their expert’s report when, after remand, they did not
specifically renew their objections in their first supplemental
brief. (Plaintiffs did renew their objections in their
supplemental reply brief after remand). While a party usually
cannot raise an issue for the first time in a reply brief, see
U.S. v. Green, 46 F.3d 461, 465 n.3 (5th Cir. 1995), plaintiffs are
not barred from pressing their objections regarding the exclusion
of their expert’s testimony here.
In their first brief on this appeal, plaintiffs presented a
full argument in favor of the admission of Dr. Benz’ testimony. We
retained jurisdiction of the case during the limited remand, and
specifically allowed the parties to brief any “aspect of [the
district court’s] reasons not already addressed in their earlier
briefs to this court.” Since we retained jurisdiction and the
original briefs carried over to this phase of the appeal, and
because our order did not require the parties to re-brief issues
already covered in their first submissions, we find that plaintiffs
did not waive their objections to the exclusion of their expert’s
testimony and therefore consider their arguments here.

--11--
509 U.S. 579, 596 (1993) (if “the trial court concludes that the

scintilla of [expert] evidence presented supporting a position is

insufficient to allow a reasonable juror to conclude that the

position more likely than not is true, the court remains free to

. . . grant summary judgment”). Both the determination of

reliability itself and the factors taken into account are left to

the discretion of the district court consistent with its

gatekeeping function under Fed. R. Evid. 702. See Kumho Tire

Co., Ltd. v. Carmichael, 526 U.S. 137, 119 S.Ct. 1167, 1176

(1999).

In its order following remand, the district court explains

at length its reasons for rejecting Dr. Benz’ reports and

testimony for purposes of its summary judgment determination.

After a careful review both of the order and the record, we

cannot conclude that the district court abused its discretion in

excluding plaintiffs’ expert reports and testimony.

The facts showing the insufficiency of Dr. Benz’ evidence

range from particular miscalculations to his general approach to

the analysis. For example, in one table Dr. Benz relied on in

reaching his conclusions, columns representing Hispanic males and

all other employees should add up to 100%, but in seven out of

twenty cases they do not. Some of those errors could be

attributable to rounding, but no satisfactory explanation was

given for totals as low as 25%, 16.67%, and 8.33%. Any reliance

on that table was necessarily misplaced.

--12--
 On a broader level, Dr. Benz’ analysis fails to meet the

standards for admissibility of scientific evidence in that the

district court found that his methods were not in accord with

those of experts in his field. See Kumho Tire Co., 119 S.Ct. at

1176 (“The objective of [the gatekeeper requirement] . . . is to

make certain that an expert . . . employs in the courtroom the

same level of intellectual rigor that characterizes the practice

of an expert in the relevant field”). Dr. Benz began his

analysis with the assumption that Kelly’s promotion system

discriminated against Hispanic males, an indicator that he lacked

the necessary objectivity to make his analyses credible. See

Viterbo v. Dow Chemical Co., 826 F.2d 420, 423 n.2 (5th Cir.

1987). Dr. Benz also stated that discrimination was the “cause”

of the disparities he had observed, a statement which he later

recanted as “overzealous” since statistics can show only

correlation and not causation. See, e.g., Tagatz v. Marquette

Univ., 861 F.2d 1040, 1044 (7th Cir. 1988).

In his depositions, he admitted to failing to consider other

variables such as education and experience as explanations for

any observed discrepancy between promotion rates and to not

performing a multiple regression analysis. See, e.g., Tagatz v.

Marquette Univ., 861 F.2d 1040, 1045 (7th Cir. 1988) (holding

that failure to control for other explanatory variables makes an

expert’s table “essentially worthless”). Finally, Dr. Benz

relied on the plaintiffs’ compilations of data, which gives rise

to a “common-sense skepticism” regarding the expert’s evaluation,

--13--
see Christophersen v. Allied-Signal Corp., 939 F.2d 1106, 1111

(5th Cir. 1991) (en banc), cert. denied, 503 U.S. 912 (1992),

overruled on other grounds by Daubert v. Merrell Dow Pharm.,

Inc., 509 U.S. 579, 587 n.5 (1993), and did not seek to verify

the information presented to him. See Sheats v. Bowen, 318

F.Supp. 640, 644 (D. Del. 1970).

Taken cumulatively, the problems with Dr. Benz’ expert

evidence indicate that his expert testimony could be unreliable.

Consistent with the role of the district court as “gatekeeper”

for scientific evidence, see General Elec. Co. v. Joiner, 522

U.S. 136, 118 S.Ct. 512, 517 (1997), it was not an abuse of

discretion on the part of the district court to exclude Dr. Benz’

testimony and reports from the summary judgment evidence.4

C. Sufficiency of plaintiffs’ other evidence

Having determined that it was not an abuse of discretion for

the district court to disregard Dr. Benz’ expert reports and

deposition testimony, we must now determine whether plaintiffs

had other sufficient evidence before the court to survive

defendant’s summary judgment motion.

A party is entitled to summary judgment if, when the

evidence is viewed in the light most favorable to the nonmovant,

4
We note that plaintiffs were not denied the opportunity to
improve their expert evidence. Dr. Benz filed a total of four
reports and was deposed three times. Plaintiffs had sufficient
time in which to substantiate their statistical claims, including
a reopening of discovery in order to allow Dr. Benz to submit
additional reports.

--14--
there are no genuine issues of material fact in dispute. See

Frazier v. Garrison Indep. Sch. Dist., 980 F.2d 1514 (5th Cir.

1993); Fed.R.Civ.P. 56(c). To withstand a motion for summary

judgment, the nonmoving party must come forward with evidence to

support each essential element of its claims on which it will

bear the burden of proof at trial. See Celotex Corp. v. Catrett,

477 U.S. 317 (1986); National Ass’n of Gov’t Employees v. City

Pub. Serv. Bd. of San Antonio, 40 F.3d 698, 712 (5th Cir. 1994).

A dispute about a material fact (i.e. one which might affect the

outcome of the trial) is “genuine” only “if the evidence is such

that a reasonable jury could return a verdict for the nonmoving

party.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248

(1986).

With Dr. Benz’ evidence excluded, plaintiffs have little

else to rely on in attempting to overcome summary judgment on

either disparate impact or disparate treatment claims. The

primary evidence they cite to consists of indicators of disparate

impact gleaned from the defense experts’ reports and two

declarations filed by individual plaintiffs Manuel Muñoz, Jr. and

Michael Galvan. In its order following remand, the district

court rejected these latter declarations as untimely filed and

endorsed defendant’s objections to them.

Plaintiffs rely on reports by defense experts Dr. Wayne

Cascio and William Ruch. Plaintiffs point out that according to

Dr. Cascio’s data, Hispanic males suffered a disparate impact

arising from defendant’s use of appraisal scores to break ties

--15--
between employees in the PPRS system that was statistically

significant for the year 1987. According to plaintiffs, Dr.

Cascio’s analysis also shows that Hispanic males received fewer

awards than would be expected at statistically significant levels

for GS-11 in 1991 and GS-13 in 1987. However, such results do

not create a genuine issue of material fact regarding disparate

impact or disparate treatment either on their own or taken in

combination with all other evidence before the district court.

The data points which could suggest disparate impact are isolated

in the record and do not support the plaintiffs’ allegations of

systemic discrimination. See Johnson v. Uncle Ben’s, Inc., 965

F.2d 1363, 1367 (5th Cir. 1992) (holding that prima facie case of

disparate impact requires a “systemic analysis of the [disparate]

effects of all promotional criteria for each rank”).

Plaintiffs also rely on two declarations filed by class

members. The magistrate struck Manuel Muñoz, Jr.’s affidavit

filed in October of 1995 in support of plaintiffs’ second motion

for partial summary judgment. The affidavit was struck on three

grounds. First, it was untimely, seeking to introduce new

statistical evidence after discovery had already been reopened

and closed once to allow plaintiffs to submit additional expert

evidence. Second, it used a methodology (the “adverse impact

barometer”) which the magistrate and plaintiffs’ own expert found

to be unreliable. Third, since he is not an expert in

statistics, Mr. Muñoz was unqualified to advance the statistical

--16--
evidence contained in the affidavit.

We review a district court’s striking of an affidavit for

failure to comply with its scheduling order under a deferential

abuse of discretion standard. See Geiserman v. MacDonald, 893

F.2d 787, 790 (5th Cir. 1990)(“a trial court’s decision to

exclude evidence as a means of enforcing a pretrial order ‘must

not be disturbed’ absent a clear abuse of discretion”) [citation

omitted]. It was not an abuse of discretion to strike an

affidavit seeking to introduce new statistical evidence after an

extension for the filing of such reports had already passed.

Because the Muñoz affidavit was properly struck, it was not

before the district court and we do not consider it now as part

of plaintiffs’ summary judgment evidence. See Barrett v.

Atlantic Richfield Co., 95 F.3d 375, 382 (5th Cir. 1996).

The other affidavit in issue was filed by Michael Galvan,

also a member of the plaintiff class. The affidavit was filed

well after the deadline for statistical reports, after even the

Muñoz affidavit. In his affidavit, Mr. Galvan states that

certain job series had a higher concentration of Hispanic

employees and that certain other job series had a higher

concentration of non-Hispanic employees. He further states that

there were fewer promotion opportunities above the GS-13 level in

the job series with the higher concentration of Hispanic

employees. Two charts containing bar graphs depicting promotion

by grade for various job series are attached.

Regardless of whether Mr. Galvan could be determined

--17--
competent to offer statistical evidence and whether the lateness

of the affidavit would bar its consideration, the affidavit has

deficiencies on its face that render it inadequate as summary

judgment evidence for the plaintiffs. First, Mr. Galvan’s bar

charts reflect the number of Hispanic employees who received

certain promotions, not the number of Hispanic males in

accordance with the class definition in this case. See Lopez v.

Laborers Int’l Union Local 18, 987 F.2d 1210, 1213-15 (5th Cir.

1993) (describing the importance of using the correct comparison

pool in evaluating statistical significance of apparent disparate

impact). Second, Mr. Galvan does not state whether the series

depicted in his bar graphs represent the entire universe of

promotions during the relevant period, making statistical

comparisons impossible. Third, allegations regarding

concentration of Hispanic employees in certain job series relate

more to hiring and initial placement than to promotion decisions,

the subject of this lawsuit.

Mr. Galvan does not purport to show, nor is there evidence

elsewhere, that any concentration of Hispanic employees in

particular job series was due to discrimination rather than

differences in which jobs Hispanic employees applied for or other

race- and gender-neutral explanations for any perceived

differences. See Watson v. Fort Worth Bank and Trust, 487 U.S.

977, 992 (1988) (“It is completely unrealistic to assume that

unlawful discrimination is the sole cause of people failing to

gravitate to jobs and employers in accord with the laws of

--18--
chance”). Finally, Mr. Galvan does not (and indeed could not, if

he is not an expert) draw any statistical inferences from the

data he presents. The court is unable to perform the necessary

analyses for the plaintiffs, particularly without adequate

information regarding the universe of promotions included in the

affidavit, the selection criteria used in compiling the data, or

other such vital information. Upon reviewing the affidavit and

other filings in the case, we find that Mr. Galvan’s affidavit is

not sufficient to raise a genuine issue of material fact

regarding plaintiffs’ claims.

Taken as a whole, plaintiffs’ evidence properly before the

district court does not raise a genuine issue of material fact as

to either disparate impact or disparate treatment class-wide

claims.

D. Failure to identify alleged discriminatory practices with

particularity

Defendant alleges that plaintiffs have failed to identify

the particular employment practices they challenge and that

instead, this case represents an attack on civilian employment

generally at Kelly. Plaintiffs counter that their attack is

adequately focused.

It is a matter of settled law that a disparate impact class

action is not the proper mechanism with which to attack the

--19--
cumulative effects of an employer’s practices. See Pouncy v.

Prudential Ins. Co. of America, 668 F.2d 795, 800 (5th Cir.

1982); see also Anderson v. Douglas & Lomason Co., Inc., 26 F.3d

1277, 1284 (5th Cir. 1994), cert. denied, 513 U.S. 1149 (1995).

Plaintiffs must provide evidence “isolating and identifying the

specific employment practices that are allegedly responsible for

any observed statistical disparities.” Wards Cove Packing Co.,

Inc. v. Atonio, 490 U.S. 642, 109 S.Ct. 2115, 2124 (1989). In

the present case, plaintiffs have focused their challenge on a

number of different aspects of the promotion system at Kelly over

the course of this litigation.5

While defendant objects with justification to the shifting

focus of plaintiffs’ claims, part of the difficulty in this case

arises from the nature of civilian promotions at Kelly.

Plaintiffs cannot bring a suit challenging an entire employment

system; yet where a promotion system uses tightly integrated and

overlapping criteria, it may be difficult as a practical matter

for plaintiffs to isolate the particular step responsible for

observed discrimination.

In this case, it may be that the overlap between the secret

algorithm used by PPRS with individual subjective decisions such

5
The complaint broadly alleges discriminatory impact arising from
the promotion system as a whole as well as a number of its
component parts. Mr. Galvan’s affidavit focuses on concentration
of Hispanics in dead-end job series. On this appeal, plaintiffs
contend that they have satisfied the particularity requirement
because they concentrate their attack on defendant’s alleged use of
experience/skill codes to exclude Hispanic males from promotions.

--20--
as awards during service and selection among a list of candidates

would make it difficult to separate out the statistical impact of

each portion of the promotion decision. However, plaintiffs have

not provided an adequate statistical study of civilian promotions

at Kelly from which a court could draw such conclusions. Because

we find that plaintiffs have failed to adduce sufficient evidence

to create a genuine issue of material fact as to disparate impact

or treatment, we need not rule on whether they failed to plead

with sufficient specificity the particular aspects of the

promotion system they contend are responsible for the

discrimination they allege.

E. Discovery limitations and their impact on plaintiffs’

ability to develop their case

Plaintiffs object to a number of discovery limitations

imposed by the magistrate judge and district court over the

course of this litigation. As a preliminary matter, we note

plaintiffs’ obligation to object contemporaneously to adverse

discovery orders. Without such objections, we can only review

for plain error. See Douglass v. United Svcs. Automobile Ass’n,

79 F.3d 1415 (5th Cir. 1996) (en banc). District courts have

considerable discretion in managing discovery. See Geiserman v.

MacDonald, 893 F.2d 787, 789 (5th Cir. 1990); see also

Fed.R.Civ.P. 16(b). That broad discretion is particularly

--21--
important in complex litigation such as this where fairness to

all litigants as well as judicial economy require that the length

and burdensomeness of discovery and motions be limited. However,

that discretion is not unlimited, of course, and a reviewing

court may reverse.

The primary discovery ruling plaintiffs object to is the

district court’s decision to deny access to the Air Force

algorithm used in the PPRS process. The district court ordered

the algorithm sealed following an in camera review of the

computer program in which it determined that the algorithm did

not contain any evidence of discrimination on the part of the Air

Force. Plaintiffs did not object at the time the algorithm was

sealed, and it was eventually returned to the Air Force. Due to

the lack of contemporaneous objection, we can only review for

plain error. Under that standard, we find that the district

court was within its discretion in refusing access to the

algorithm.

It is unlikely that denial of access to the algorithm unduly

prejudiced plaintiffs’ claims. Defendant had already supplied

detailed information on the overall promotion system and the

inputs used by the PPRS automated system. Plaintiffs also

already knew what factors were used to break ties between

employees and what weight was assigned to each. Denial of access

to the algorithm arguably could make it more difficult to

identify with specificity the aspects of Kelly’s promotion system

responsible for any observed disparate impact. However,

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plaintiffs’ claim does not fail on those grounds and therefore a

remand to the district court solely because of its denial of

access to the algorithm would be inappropriate.

Plaintiffs also object to several other discovery orders by

the magistrate and district court. As noted above, we must allow

for the district court’s discretion in discovery matters,

especially in complex litigation. After a thorough and careful

review of the record and plaintiffs’ objections, we do not find

reversible error in any of the district court’s discovery orders.

F. Survival of individual claims

Plaintiffs contend that even if this court upholds the

summary judgment as against the class action, the individual

plaintiffs’ claims should survive and should be remanded for

trial. The defense counters that this action was brought solely

as a class action and that no individual claims were ever pled.

On the face of the complaint, no individual claims seem to be

alleged, and the bulk of litigation below seems to have been

premised on the existence of only a class claim.

However, this case has appeared in this court once before

and on that hearing the panel decision makes note of individual

claims in addition to the class claim on the face of the

complaint. See Muñoz v. Aldridge, 894 F.2d 1489, 1491-95 (5th

Cir. 1990) (remanding for further consideration class and

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individual claims). Without full briefing from the parties on

this issue, our careful review of the record has not revealed

whether the individual claims referred to in the previous opinion

from this court were officially dropped from the litigation.6 In

order to give due consideration to plaintiffs’ claims given this

uncertainty, we examine the summary judgment assuming that some

form of individual claims have been brought. We find, however,

that any individual claims would also fail to survive summary

judgment.

In spite of the inclusion of several individual affidavits

in support of plaintiffs’ second motion for partial summary

judgment (advanced as evidence of class discrimination according

to the plaintiffs’ characterization), the only possible

individual claims would be those appearing in the complaint, i.e.

those of Jesus and Manuel Muñoz, Jr. See, e.g., Coon v.

Georgia-Pac. Corp., 829 F.2d 1563 (11th Cir. 1987) (limiting

claims pursuant to Fed.R.Civ.P. 8(a) to those stated in the

complaint). It is well established that a class representative

cannot have interests adverse to the class, see Fed.R.Civ.P.

23(a)(4), nor can individual liability be adjudged before class

liability is determined. See Bernard v. Gulf Oil Corp., 841 F.2d

547, 569 (5th Cir. 1988).

6
The class was certified in this case after the first appeal. The
“individual claims” referred to in that opinion – i.e. those of the
named plaintiffs – could therefore be seen as collapsing into the
newly defined class claims to the degree that they were based on
the same allegations.

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 The preliminary question regarding any individual claims is

whether we have jurisdiction at all, since summary judgment only

as to the class claim would not dispose of the entire case and

therefore would not be an appealable final order. Such is not

the case, however. In his last motion for summary judgment,

defendant requested dismissal of plaintiffs’ complaint as a

whole, thus putting any individual plaintiffs on notice that

summary judgment could be pending against them. The district

court’s order dismissed “all plaintiffs’ claims” with prejudice,

disposing of any individual claims along with the class claim.

The summary judgment is thus a final and appealable order and its

propriety is legitimately before us.

Any individual claims based on disparate impact would fail

both because they would be duplicative of class claims in the

same action and also because the same statistical proof deemed

inadequate for the class would likewise fail to forestall summary

judgment on individual claims. See Matsushita Elec. Indus. Co.,

Ltd. v. Epstein, 516 U.S. 367, 379 (1996) (defeat of class claim

is binding on class members’ individual claims based on same

allegations and facts).

As noted earlier, a prima facie case of individual disparate

treatment in promotion must show: that the plaintiff is a member

of a protected class, that he was qualified for and applied for a

promotion, and that the position remained open and the employer

continued to look for candidates with similar qualifications.

See McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802 (1973).

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The burden of persuasion remains with the plaintiff, see Texas

Dept. of Community Affairs v. Burdine, 405 U.S. 248, 253 (1981),

and a reviewing court may look to all the evidence submitted to

determine whether defendant met its burden of producing a

legitimate reason for the employment action. See In re Royale

Airlines, Inc., 98 F.3d 852, 856 (5th Cir. 1996) (judgment may be

affirmed on any grounds in the record).

The named plaintiffs arguably made out a prima facie case on

their individual claims, since the complaint and later-filed

affidavits allege the required elements for disparate treatment:

that the named plaintiffs are members of a protected class and

that they were denied promotions. However, all of the promotion

denials challenged by the class, including those of the named

plaintiffs, arose from the Merit Promotion Plan at Kelly. The

promotion plan itself, including the PPRS algorithm which the

district court determined was not probative of any claims of

discrimination, is the “reason” for the denial of promotions in

issue. Plaintiffs would have to show, therefore, either that

there is a genuine issue as to whether the promotion plan

indicates intentional discrimination or that the promotions

denied them were somehow capable of being isolated from the

promotion system and that purposeful discrimination was behind

those employment actions.

Nothing in the record adequately alleges or shows purpose on

the part of defendant. A complete failure of proof as to one

element requires summary judgment against the entirety of the

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claim. See Celotex Corp. v. Catrett, 477 U.S. 317 (1986).

Because plaintiffs have not shown any evidence going to purpose,

any individual claims based on disparate treatment fail to

withstand summary judgment.

We note that the failure of proof on the class claim does

not bar all individual class members from bringing their own

suits, provided that they do not base their claims solely on

issues already adjudicated in this action and that they can show

individualized proof of discrimination. See Cooper v. Federal

Reserve Bank of Richmond, 467 U.S. 867, 880 (1984).7

III. Conclusion

This has been protracted and difficult litigation for both

sides. We fully appreciate the importance of this case, both in

terms of the resources dedicated to it and its impact on the

plaintiff class-members’ lives. After fourteen years in the

7
Plaintiffs suggest that if we find for defendant on the summary
judgment issue, we should remand the case for decertification of
the class on the grounds that the named plaintiffs have failed to
adequately represent the class. First, individual claims based on
particularized evidence of discrimination may still be possible for
some class members. Second, we cannot say that the named
plaintiffs have failed to adequately represent the interests of the
class over fourteen years of federal litigation. Decertification
is not appropriate merely because the statistical evidence proved
inadequate to raise a genuine issue of material fact. The named
plaintiffs have zealously sought to vindicate what they see as
wrongs to the class and have not failed in their duty of
representation.

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federal courts, the case comes before us now on a narrow range of

issues for which the scope of our review is narrowly

circumscribed. The discovery rulings and the exclusion of

plaintiffs’ key expert evidence were not an abuse of discretion

by the district court. Without statistical proof, dismissal of

the class claims was appropriate. Any individual claims have not

produced sufficient proof of disparate impact or of purpose

necessary to a disparate treatment claim to survive summary

judgment.

The summary judgment against all plaintiffs’ claims is

hereby AFFIRMED.

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