Barbara Davis v. Joseph A. Califano

613 F.2d 957, 198 U.S. App. D.C. 224

• Court: Court of Appeals for the D.C. Circuit
• Decided: February 14, 1980
• Docket: 78-1398
• Status: Published

Opinions

AUBREY E. ROBINSON, Jr., District Judge:

Appellant, Dr. Barbara Davis, is a white female employee at the National Heart, Lung and Blood Institute (NHLBI), National Institutes of Health (NIH), of the United States Department of Health, Education and Welfare (HEW). She alleged unlawful discrimination against her based on her sex, in hiring, promotions, and other conditions of employment, in violation of Title VII of the Civil Rights Act of 1964, as amended by the Equal Opportunity Act of 1972, 42 U.S.C. § 2000e, et seq.1 Appellant’s Complaint sought damages, back pay, overtime pay, promotion to a GS-13 level position, declaratory, injunctive, and other relief. Following a trial de novo,2 the district court dismissed Appellant’s Complaint and entered judgment for Appellee pursuant to Rule 52(a) of the Federal Rules, of Civil Procedure.

I. FACTS

Appellant received a Bachelor of Science Degree in 1968 prior to beginning work at NIH.³ She was hired as a GS-5 chemist in March, 1968.⁴ Shortly thereafter, Appellant was transferred to the intramural research division of NHLBI.⁵ Although most of the GS-5 chemists at NHLBI intramural research were promoted to a GS-7 after one year of service,⁶ Appellant was not promoted to the GS-7 level until June, 1970.⁷ The district court found that the delay in Dr. Davis’ promotion was due to an administrative oversight, and that, when the oversight was noticed, Appellant was promoted and an effort was made to recompense her by paying all of her tuition and purchasing many of her books for her work on her Master’s Degree.⁸

Appellant received her Master’s Degree in early 1973,⁹ and a Ph.D.. in chemistry in February, 1977.¹⁰ Appellant was promoted to GS-9 level in November, 1975, and remains a GS-9 today.¹¹ Several male chemists were promoted to GS-9 level with less time in grade than Appellant.¹² Dr. Davis is in the 13-20 Series for Chemists.¹³ The district court found that this series had a normal career ladder from a GS-5 through a GS-9 level.¹⁴ Positions above the GS-9 level were filled by the Senior Scientific Research Staff.

Generally, promotions from GS-7 to GS-9 were initiated by individual supervisors. Their recommendations would be reviewed by the branch chief, and, if approved, would then be submitted to an independent promotion panel. This procedure was designed to advance a process of grade de-escalation then underway. No criteria existed to guide supervisors, branch chiefs, or promotion panels in determining whether a promotion was justified. Nor were there criteria specified for selection of promotion panels. Rather, promotion panels were composed on an ad hoe basis of professional scientific staff members.¹⁵ As will be discussed later, the professional scientific staff was predominantly male.¹⁶

The qualifications for a senior scientific research staff position of independent investigator, the position sought by Dr. Davis, are the capability of perceiving a specific research problem and developing a hypothesis and protocol for determining its truth or falsity.¹⁷ An independent investigator position is usually, although not always, held by a person with a Ph.D. or an M.D. degree.¹⁸ NIH had created a staff fellowship program for new Ph.Ds., to permit them the opportunity to both develop and prove their capabilities to function in the innovative and creative manner required of independent investigators.¹⁹ An inexperienced Ph.D. is almost never hired as án independent investigator without first participating in the staff fellowship program.²⁰

II. APPELLANT’S STATISTICAL EVIDENCE

The abundant relevant statistical data presented to the trial court may be divided roughly into three categories: (1) data indicating disparity in grade and salary structure between male' and female employees at NIH. and NHLBI; (2) data indicating disparity in promotion rates of men and women employees at NIH and NHLBI; and (3) data indicating disparity in grade and salary structure of male and female employees at NHLBI with regard to their education.

The category one statistics reveal that the upper grade and salary structure at NIH and NHLBI is overwhelmingly made up of male employees. For example, as of September, 1975, 36.1% of all male NIH employees held positions at or above the GS-13 level, while only 4.8% of female employees held positions at those levels. Appellant’s statistics indicate that these figures varied little from similar figures for January, 1972.²¹ In September, 1975, 78.7% of NIH employees holding GS-13 level positions were male and 21.3% were female.²² Approximately 39.2% of all the GS rated employees at NIH in September of 1975 were men; 60.8% were women.

' For fiscal year 1976, 46.2% of all male NHLBI employees held positions at or above the GS-13 level, while only 7.3% of female NHLBI employees held positions at those grade levels²³ For this same period of time, 68.4% of NHLBI employees holding GS-13 level positions were male and 31.6% were female.²⁴ 40.5% of the GS rated employees at NHLBI were males at that time, and 59.5% were females.

The category two statistics indicate that the rate of promotions at higher levels was much higher for male GS employees at NIH and NHLBI than for female GS employees. For example, in fiscal year 1974, 55.8% of the professional NIH GS employees who were promoted were women. Approximately 58% of the professional male NIH employees, who were promoted were at the GS-13 level and above while only 12.1% of the professional female NIH employees who were promoted were at GS-13 and above.²⁵

For the years 1972-1976, 37.7% of the male employees at NHLBI who were promoted were at the GS-13 level and above, as compared to 4.8% of the female employees at NHLBI who were promoted.²⁶

Category three statistics show that, among employees with doctorate degrees, there is a tendency for males to be employed at higher grade levels than females. For example, of the professional employees at NHLBI in October, 1975, 81% of the males with Ph.Ds. held GS-14 positions or above, while only 41.2% of the females with Ph.D. degree's were in GS-14 positions or above.²⁷

In October of 1975, male professional employees at NHLBI holding Ph.D. degrees had an average grade of 14.22, while the corresponding average grade for female Ph.Ds. was 13.47.²⁸ For that same year, the average grade level for male NHLBI chemists within the division of Intramural Research was 14.28, and the average grade level for female NHLBI chemists within that division was 13.29.²⁹

III. PRIMA FACIE CASE

The primary issue on appeal is whether the trial court erred in its determination that Dr. Davis failed to make out a prima facie case of discriminatory promotion practices.³⁰ In particular Appellant challenges the district court’s Conclusions of Law that (1) statistics alone may not prove a prima facie case in an individual, as opposed to a class action, discrimination case,³¹ and (2) Appellant’s statistics were irrelevant because they included no information on the qualifications of those available for promotions.³² For the reasons discussed below, this Court concludes that the trial court erred and that the action must be reversed and remanded.

A Title VII plaintiff carries the initial burden of presenting a prima facie case of employment discrimination. International Brotherhood of Teamsters v. United States, 431 U.S. 324, 336, 97 S.Ct. 1843, 52 L.Ed.2d 396 (1977).

The method suggested in McDonnell Douglas for pursuing this inquiry . was never intended to be rigid, mechanized, or ritualistic. Rather, it is merely a sensible, orderly way to evaluate the evidence in light of common experience as it bears on the critical question of discrimination. A prima facie case under McDonnell Douglas raises an inference of discrimination only because we presume these acts, if otherwise unexplained, are more likely than not based on the consideration of impermissible factors.

A McDonnell Douglas prima facie showing is not the equivalent of a factual finding of discrimination . . . . [I]t is simply proof of actions taken by the employer from which we infer discriminatory animus because experience has proved that in the absence of any other explanation it is more likely than not those actions were bottomed on impermissible considerations.

Furnco Constr. Corp. v. Waters, 438 U.S. 567, 98 S.Ct. 2943, 2949, 2951, 57 L.Ed.2d 957 (1978). After a prima facie case has been made, the burden shifts to the employer to “prov[e] that he based his employment decision on a legitímate consideration, and not an illegitimate one such as race.” Furnco, supra, 98 S.Ct. at 2950. See also Wetzel v. Liberty Mutual Insurance Co., 508 F.2d 239, 259 (3rd Cir. 1972). The burden of persuasion then shifts back to the plaintiff, who “must be given the opportunity to introduce evidence that the prof erred justification is merely a pretext for discrimination.” Furnco, surpa, 98 S.Ct. at 2950.

A. Statistical Evidence In An Individual Employment Discrimination Case

Statistical evidence is merely a form of circumstantial evidence from which an inference of discrimination may be drawn. The invocation of statistical data works no magical incantation. As with any circumstantial evidence, the usefulness of statistical evidence “depends on all of the surrounding facts and circumstances.” Teamsters, supra, 431 U.S. at 340, 97 S.Ct. at 1857. Statistical proof may alone be used, without presentation of specific instances of discrimination, to establish a prima facie case of employment discrimination.³³ Hazelwood School District v. United States, 433 U.S. 299, 307-08, 97 S.Ct. 2736, 53 L.Ed.2d 768 (1977); Teamsters, supra, 431 U.S. at 339, 97 S.Ct. 1843; Kinsey v. First Regional Securities, Inc., 181 U.S.App.D.C. 207, 216, 557 F.2d 830, 839 (D.C. Cir. 1977).

This is so in an individual action as well as in a class action. We have previously indicated,³⁴ and now explicitly hold, that statistical evidence may establish a prima facie case of employment discrimination in an individual case. The trial court’s conclusion that such evidence has less probative value in an individual action than in a class action is in error.³⁵

Statistical evidence is typically utilized in class actions to establish prima facie case demonstrating a pattern-or-practice of unlawful discrimination. See Teamsters, supra, 431 U.S. at 336-40, 97 S.Ct. 1843. An individual claimant in a class action need additionally establish only that he or she is a member of the class and has been denied a promotion or other employment benefit during the period of the class discrimination in order to recover for particularized injuries.³⁶ An employer may defeat that right to recovery by sustaining its, burden of proving either that the plaintiff’s statistical proof of class discrimination is inaccurate or insignificant, or that the individual claimant was denied an employment benefit for lawful reasons.³⁷

Just as statistical proof of a “broad-based policy of employment discrimination [provides] reasonable grounds to infer that individual [employment] decisions were made in pursuit of the discriminatory policy and . requirefs] the employer to come forth with evidence dispelling that inference” in a class action,³⁸ so too should the use of statistical evidence have equal force and effect in an individual discrimination case. The Supreme Court in the Teamsters case explained its rationale for permitting a plaintiff to present a prima facie case in a class action through statistical evidence:³⁹

Although the prima facie case did not conclusively demonstrate that all of the employer’s decisions were part of the proved discriminatory pattern and practice, it did create a greater likelihood that any' single decision was a component of the overall pattern. Moreover, the finding of a pattern or practice changed the position of the employer to that of a proved wrongdoer. Finally, the employer was in the best position to show why any individual employee was denied an employment opportunity. Insofar as the reasons related to available vacancies or the employer’s evaluation of the applicant’s qualifications, the company’s records were the most relevant items of proof. If the refusal to hire was based on other factors, the employer and its agents knew best what those factors were and the extent to which they influenced the decisionmaking process.

This same reasoning applies in an individual action. .

B. Nature of Statistical Evidence Probative of and Sufficient to Prove a Prima Facie Case of Discrimination with Regard to Promotions

Appellant’s statistical data included in what has previously been designated category number one compares the sexual composition of the upper grade and salary positions at NIH and NHLBI with the overall sexual composition of those organizations. This data is probative evidence from which a court may infer discriminatory animus.

The proper comparison is between the composition of the relevant work force and the qualified population in the relevant labor market.⁴⁰ In the context of a promotion case such as is presently before the Court, it would be expected that, absent discriminatory promotion practices, the proportion of the protected group in each of the job classifications and grade levels would approximate the proportion of the protected group with the minimum necessary qualifications for promotion in the employer’s labor force as a whole. See Teamsters, supra, at 339-40 n.20, 97 S.Ct. 1843.

The trial court criticized Appellant’s statistics due to the lack of detailed information regarding qualifications of those available for promotions.⁴¹ However, only the minimum objective qualifications necessary for one to be eligible for promotion must be considered in the statistical data presented initially by a plaintiff; not every conceivable factor relevant to a promotion decision must be included in the statistical presentation in order to make out a prima facie case.⁴² For example, if a doctorate was necessary for an individual to be eligible for a position in the upper grade levels at NIH or NHLBI, then statistics on the relevant labor market would have to be so limited. The quality of education received by those eligible candidates, although perhaps a relevant factor in employment and promotion decisions, would not have to be provided for in the statistics initially proffered to make a prima facie case. Similarly, if a particular number of years of work experience were established as a minimum job criterion, then that would need to be reflected in the proffered statistics. If, however, work experience were only a factor to be considered in promotion decisions, a plaintiff’s statistical data need not take that into account.

We are not suggesting that a plaintiff may not present statistical evidence of factors relevant to promotion other than the minimum objective qualifications necessary for eligibility. We are merely saying that he need not do so to establish a prima facie case. The defending party, with the greater access to statistical evidence of other relevant factors, may utilize such evidence in its rebuttal presentation.⁴³

The record herein reveals that there are no minimum necessary objective qualifications for the senior scientific research staff position of independent investigator.⁴⁴ A doctorate is not a minimum necessary requirement, and the required capabilities of innovation and creativity are subjective, not objective, criteria. Therefore, contrary to the district court’s second Conclusion of Law, the bare showing made by Dr. Davis’ category one statistics is adequate.⁴⁵

In a promotion case such as that presented to this Court, the organization in which the plaintiff is an employee is appropriately utilized as the relevant labor market.⁴⁶ At NIH approximately 75% of the positions at GS-11 and above are filled by promotion from within rather than recruitment from without.⁴⁷ Therefore, Appellant’s statistical data included in category number one, indicating a substantial disparity between the percentage of female employees in the upper grade and salary positions at NIH and NHLBI and the overall percentage of female employees in those organizational units, is sufficient to make out a prima facie case of discrimination.

Appellant’s statistical data included in category number two also constitutes probative evidence from which discriminatory intent might be inferred.⁴⁸ Absent discriminatory promotion practices, similar promotion rates for male and female employees in the higher job classifications and grade levels who possess the minimum objective qualifications necessary for those positions would be expected. Dr. Davis’ statistical evidence indicated that male GS employees in the higher grades at NIH and NHLBI were promoted at a substantially higher rate than similarly situated female employees.

Appellant’s statistical prima facie case is bolstered by the subjective and ad hoc nature of Appellee’s promotion decisions. No objective criteria were established to guide the promotion decisions of supervisors, branch chiefs and ad hoc promotion panels, who were predominantly male.⁴⁹ This Court agrees with the Eighth Circuit Court of Appeals in Rogers v. International Paper Co., 510 F.2d 1340 (8th Cir. 1975), vacated on other grounds, 423 U.S. 809, 96 S.Ct. 19, 46 L.Ed.2d 29 (1975), reinstated with modification on other grounds, 526 F.2d 722 (8th Cir. 1975), which stated:

Greater possibilities for abuse . are inherent in subjective definitions of employment selection and promotion criteria. Yet they are not to be condemned as unlawful per se, for in all fairness to applicants and employers alike, decisions, about hiring and promotion in supervisory and managerial jobs cannot realistically be made using objective standards alone. Thus, it is especially important for courts to be sensitive to possible bias in the hiring and promotion process arising from such subjective definition of employment criteria.

Appellee’s promotion procedures are highly suspect and must be closely scrutinized because of their capacity for masking unlawful bias.⁵⁰ The “lack of meaningful standards to guide the promotion decision, whereby there is some assurance of objectivity . . . encouragefs] and foster[s] discrimination.” ⁵¹

IV. CONCLUSION

For the reasons discussed above, we find that the trial court erred in its determination that Dr. Davis failed to make out a prima facie case of discrimination. The judgment of the trial court is reversed and-remanded. On remand, the trial court must determine whether Appellee has sustained its burden of showing either that Appellant’s statistical proof is inaccurate or insignificant, or that she was denied promotion for lawful reasons. The trial court shall also consider Appellant’s allegations of continuing harassment and retaliation dating back to her initial employment with NIH.

1 . The trial court in its first Conclusion of Law, properly dismissed Appellant’s Fifth Amendment due process claims, holding that her exclusive remedy was provided by Title VII of the Civil Rights Act of 1964. Brown v. GSA, 425 U.S. 820, 96 S.Ct. 1961, 48 L.Ed.2d 402 (1976); Richardson v. Wiley, 186 U.S.App.D.C. 309, 569 F.2d 140 (D.C. Cir. 1977). Moreover, the court below properly dismissed this action as to the individual federal defendants. Secretary Califano is the only appropriate defendant herein, as he is the head of the agency. 42 U.S.C. § 2000e-16(c).

2 . Trial was held November 28, 1977, through December 12, 1977.

3 . Trial Transcript, November 30, 1977, at 247.

⁴

5 . Trial Transcript, November 30, 1977, at 246-47, 254-55.

6 . Trial Transcript, December 1, 1977, at 447.

7 . Trial Transcript, November 30, 1977, at 260, 275-76. Most of the chemists at NHLBI intramural research were women. Trial Transcript, December 1, 1977, at 447.

8 . Findings of Fact Nos. 12, 16. It was NHLBI’s normal policy that only one course per semester be supported, and that no books be purchased. Trial Transcript, December 7, 1977, at 855.

9 . Trial Transcript, December 1, 1977, at 450.

10 . Plaintiffs Exhibit No. 62, Appellant’s Appendix at 297.

11 . Trial Transcript, December 1, 1977, at 376.

12 . Trial Transcript, November 28, 1977, at 85; Trial Transcript, November 29; 1977, at .106-08, 118-20.

Appellant also introduced evidence that she was passed over for promotion on several occasions. See, e. g., Defendant’s Exhibit No. 10, Appellant’s Appendix at 533; Plaintiffs Exhibit No. 53, Appellant’s Appendix at 292.

Although there was conflicting evidence, the trial court found that Appellant was not promoted sooner because of an unwritten NIH policy that an employee not be promoted in grade when pursuing a graduate degree, using NIH laboratory facilities for study purposes, being permitted a flexible work week, and having one of NIH’s scientists act as thesis supervisor, since those employees are primarily working for themselves. Findings of Fact Nos. 27 and 88. The Court also found that exceptions were made to this policy. Findings of Fact No. 29. Although this Court has serious questions regarding this alleged unwritten policy, we need not now determine whether Findings of Fact Nos. 27 and 88 are clearly erroneous.

Dr. Davis also alleged numerous other discriminatory acts and acts of reprisal for her having filed a discrimination complaint. It is unnecessary to detail these allegations herein.

13 . Trial Transcript, December 6, 1977, at 781.

14 . Trial Transcript, December 5, 1977, at 562. That career ladder has been in effect for Chemists in Intramural Research at NIH for 10-12 years. At trial, there was also conflicting evidence that the career ladder ranged from GS-5 to GS-12 or GS-15. Trial Transcript, November 29, 1977, at 149; Trial Transcript, December 5, 1977, at 511.

15 . Trial Transcript, December 7, 1977, at 888-93.

16 . See page - of 198 U.S.App.D.C., page 960 of 613 F.2d, infra.

17 . Trial Transcript, December 7, 1977, at 882.

18 . Trial Transcript, December 7, 1977, at 882-83.

¹⁹

20 . Trial Transcript, December 7, 1977, at 883, 936.

21 . Plaintiffs Exhibit No. 1, Appellant’s Appendix at 88.

22 . Plaintiff’s Exhibit No. 2, Appellant’s Appendix at 94.

23 . Plaintiff’s Exhibit No. 6, Appellant’s Appendix at 114.

24 . Plaintiff’s Exhibit No. 5, Appellant’s Appendix at 103.

²⁵

26 . Plaintiff’s Exhibit No. 16, Appellant’s Appendix at 153.

27 . Plaintiffs Exhibit No. 9, Appellant’s Appendix at 129.

28 . Plaintiff’s Exhibit No. 9, Appellant’s Appendix at 131.

29 . Plaintiff’s Exhibit No. 10, Appellant’s Appendix at 137.

30 . The trial court’s fourth Conclusion of Law, holding that allegations of any acts occurring prior to February 4, 1974, were not properly, before the Court, is correct only insofar as it applies to Appellant’s claims of discrimination in her hiring. That is the date thirty days prior to the date on which Dr. Davis filed an informal complaint with her EEO counselor. 5 C.F.R. § 713.214 states in pertinent part:

The agency may accept the complaint for processing in accordance with this subpart only if—

(i) The complainant brought to the attention of the Equal Employment Opportunity Counselor the matter causing him to believe he had been discriminated against within 30 calendar days of the date of that matter, or, if a personnel action, within 30 calendar days of its effective date . .

Although Appellant’s hiring in the context of this case constituted an isolated and completed act, her allegations of discriminatory promotion practices and related acts, and her allegations of harassment and retaliation, constitute continuing violations not subject to the normal time limitations for filing. See Macklin v. Spector Freight Systems, Inc., 156 U.S.App. D.C. 69, 478 F.2d 979 (D.C. Cir. 1973); Loo v. Gerarge, 374 F.Supp. 1338 (D.Hawaii 1974). In any event, it appears that Appellant has abandoned her hiring claims on appeal.

31 . Conclusions of Law No. 3.

32 . Conclusions of Law No. 2.

33 . Dr. Davis also presented to the trial court evidence of numerous specific instances of discrimination, and the Defendant-Appellee introduced opposing evidence. This need not be detailed in view of this court’s determinations herein.

34 . Hackley v. Roudebush, 171 U.S.App.D.C. 376, 426, 520 F.2d 108, 158 (D.C. Cir. 1975); Kinsey, supra, 181 U.S.App.D.C. at 216, 557 F.2d at 839.

35 . See Kaplan v. International Alliance of Theatrical and Stage Employees and Motion Picture Machine Operators, 525 F.2d 1354, 1358 (9th Cir. 1975); Muller v. United States Steel Corporation, 509 F.2d 923 (10th Cir. 1975).

In each of the Eighth Circuit cases relied upon by Appellee and the trial court, there was evidence of a legitimate, nondiscriminatory basis for the employment action, or that the statistical proof was unreliable, suggesting that the holding in those cases was that the employer had carried its burden of rebuttal. See Harper v. Trans World Airlines, Inc., 525 F.2d 409 (8th Cir. 1975); King v. Yellow Freight System, Inc., 523 F.2d 879 (8th Cir. 1975); Terrell v. Feldstein Co., 468 F.2d 910 (5th Cir. 1972). However, to the extent that language in those decisions suggests that statistical proof might establish a prima facie case in a class action only, we reject that position.

36 . Appellant Dr. Davis established these elements before the trial court. See pages-- - of 198 U.S.App.D.C., pages 958-959 of 613 F.2d, supra.

37 . [The plaintiffs] initial burden is to demonstrate that unlawful discrimination has been a regular procedure or policy followed by an employer or group of employers ... At the initial, “liability” stage of a pattern or practice suit the [plaintiff] is not required to offer evidence that each person for whom it will ultimately seek relief was a victim of the employer’s discriminatory policy. Its burden is to establish a prima facie case that such a policy existed. The burden then shifts to the employer to defeat the prima facie showing of a pattern or practice by demonstrating that the [plaintiff’s] proof is either inaccurate ' or insignificant. .

If an employer fails to rebut the inference that arises from the [plaintiff’s] prima facie case, a trial court may then conclude that a violation has occurred and determined the appropriate remedy. Without any further evidence from the [plaintiff], a court’s finding of a pattern or practice justifies an award of prospective relief. Such relief might take the form of an injunctive order against continuation of the discriminatory practice When the [plaintiff] seeks individual relief for the victims of the discriminatory practice, a district court must usually conduct additional proceedings after the liability phase of the trial to determine the scope of individual relief. . . [T]he question of individual relief does not arise until it has been proved that the employer has followed an employment policy of unlawful discrimination. The force of that proof does not dissipate at the remedial stage of the trial. . The employer cannot, therefore, claim that there is no reason to believe that its individual employment decisions were discriminatorily based; it has already been shown to have maintained a policy of discriminatory decisionmaking.

The proof of the pattern or practice supports an inference that any particular employment decision, during the period in which the discriminatory policy was in force, was made in pursuit of that policy. The [plaintiff] need only show that an alleged individual discriminatee unsuccessfully applied for a job and therefore was a potential victim of the proved discrimination. As in [Franks v. Bowman Transportation Co., 424 U.S. 747, 96 S.Ct. 1251, 47 L.Ed.2d 444 (1976)], the burden then rests on the employer to demonstrate that the individual applicant was denied an employment opportunity for lawful reasons.

Teamsters, supra, at 361-62, 97 S.Ct. at 1867-68.

38 . Teamsters, supra, at 359, 97 S.Ct. at 1866.

39 . Teamsters, supra, at 359 n.45, 97 S.Ct. at 1867 n.45.

40 . Hazelwood School District, supra, 433 U.S. at 308, 97 S.Ct. at 2742, a hiring case, states:

[A] proper comparison was between the racial composition of Hazelwood’s teaching staff and the racial composition of the qualified public school teacher population in the relevant labor market.

This Court in Kinsey, supra, 181 U.S.App.D.C. at 216, 557 F.2d at 839, applied a similar test:

It has been further held that statistical disparity between the proportion of blacks in the employer’s work force and the proportion of blacks in the relevant labor market constitutes a prima facie case of discrimination in violation of Title VII. .

Such evidence is equally valid in an upper level job discrimination case, provided the relevant labor pool is accurately defined, as to those persons possessing the qualifications which the employer requires.

41 . Findings of Fact No. 129; Conclusions of Law No. 2.

42 . See Hazelwood School District, supra, 433 U.S. at 308 & n.13, 97 S.Ct. at 2742 & n.13. In Hazelwood, the Court stated:

When special qualifications are required to fill particular jobs, comparisons to the general population (rather than to the smaller group of individuals who possess the necessary qualifications) may have little probative value. The comparative statistics introduced by the Government in the District Court, however, were properly limited to public school teachers, and therefore that is not a case like Mayor v. Educational Equality League, 415 U.S. 605 [94 S.Ct. 1323, 39 L.Ed.2d 630], in which the racial-composition comparisons failed to take into account special qualifications for the position in question. Id., at 620-21 [94 S.Ct., at 1333-1334], íd. The Court limited the relevant labor market to teachers, but did not require that the statistics reflect years of work experience, quality of training, and other potentially relevant factors. See also Teamsters, supra, 431 U.S. at 342 n.23, 97 S.Ct. 1843; Rich v. Martin Marietta Corp., 522 F.2d 333 (10th Cir. 1975).

43 . The trial court also criticized Appellant for including in her statistical evidence only General Schedule Employees, who constitute approximately 55-60% of all NIH employees, presenting statistics that failed to reflect additional degrees obtained by employees during their employment, basing many of her tables on cumulative totals of men and women above particular grade levels, and failing to limit many of her tables and charts to employees in the scientific field. Findings of Fact Nos. 127, 131, 132 and 134. However, Appellant’s statistics are probative and relevant and Appellee has presented no evidence suggesting how the aforementioned criticisms make Appellant’s statistical proof either inaccurate or insignificant.

44 . See page - of 198 U.S.App.D.C., pages 959-960 of 613 F.2d, supra.

45 . Even if we were to have concluded that a doctorate was a minimum necessary requirement, this Court would still conclude that Appellant has presented a prima facie case. The statistical evidence included in category three indicates disparities in grade and salary of male and female employees with equivalent educational degree qualifications.

46 . See Stewart v. General Motors Corp., 542 F.2d 445, 449-50 (7th Cir. 1976) cert. denied, 433 U.S. 919, 97 S.Ct. 2995, 53 L.Ed.2d 1105; Rich, supra, at 347; Wetzel, supra, at 257-58.

47 . Trial Transcript, December 6, 1977, at 752.

48 . See Watkins v. Scott Paper Co., 530 F.2d 1159, 1190-92 (5th Cir. 1976); cert. denied, 429 U.S. 861, 97 S.Ct. 163, 50 L.Ed.2d 139 (1976); Rich, supra, at 347; Wetzel, supra, at 258; Rowe v. General Motors Corp., 457 F.2d 348 (5th Cir. 1972).

49 . See page -of 198 U.S.App.D.C., pages 959-960 of 613 F.2d, supra.

50 . [S]ince there were no written criteria for promotion, a racially discriminatory denial of promotion could easily pass as one motivated by a desire to accord appellant greater training.

Hackley, supra, 171 U.S.App.D.C. at 427, 520 F.2d at 159. See also Kinsey, supra, 181 U.S. App.D.C. at 215, 557 F.2d at 838; Rich, supra, at 348; Barnett v. W. T. Grant Co., 518 F.2d 543, 550 (4th Cir. 1975); Rowe, supra, at 358-59.

51 . Muller, supra, at 927-28.