Opinion for the Court filed by Circuit Judge EDWARDS.
EDWARDS, Circuit Judge:
In this case appellants Milton and Whelan seek review of a judgment of the District Court denying their claims for relief under Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e-16 (1976), on charges of unlawful sex discrimination with respect to job promotions. After a full trial on the merits, the District Court found that appellants' claims were "time-barred" as to four of the six job vacancies at issue, because those claims had not been filed until after the applicable limitation period had run. The District Court also rejected the claims of discrimination regarding the two remaining job vacancies, both of which involved timely complaints, finding that the appellees had "met their burden ... of establishing that neither plaintiff would have been selected for the two vacancies even in the absence of sex discrimination."
For the reasons set forth below, we affirm the judgment of the District Court with respect to the four claims found to be time-barred and with respect to one of the two other claims. However, as to the sixth claim, which was timely filed, we reverse
Appellants Dorothy Milton and Eleanor Whelan were employed at the Cameron Station of the Defense Logistics Agency (DLA) of the Department of Defense in 1967. By 1971 each woman held the position of Equal Employment Opportunity Officer at grade GS-13. Between 1972 and 1977 each woman applied for several promotions to GS-14 positions. Although in each instance both women were found qualified for the sought-after promotion, on every occasion a man was selected for the job.
The selection procedure for awarding promotions in the DLA consisted of two steps. As the trial court explained, qualified applicants were
Memorandum Opinion, reprinted in J.A. at 17a.
The appellants alleged six specific acts of discrimination. The first four took place between 1972 and February 1975, during which period each appellant applied and was found "qualified" for four promotions within the Defense Logistics Agency.
In August 1975, Milton sought advancement for the fifth time, applying for a
Following the rejection of Milton's application for JOA 275, Milton and Whelan filed with the DLA an informal complaint of sex discrimination. In an attempt to resolve the dispute, the DLA proposed to give them each a "priority consideration letter." After accepting this resolution of their complaint,
II. THE DECISION OF THE DISTRICT COURT
The appellants' case was fully tried without a jury.
Following Furnco Construction Corp. v. Waters, 438 U.S. 567, 98 S.Ct. 2943, 57 L.Ed.2d 957 (1978), the court concluded that the burden had shifted to the appellees to demonstrate "that all the allegedly illegal employment decisions were based on legitimate nondiscriminatory considerations." Memorandum Opinion, reprinted in J.A. at 15a. The court noted that, since "[n]o claim for injunctive relief ... is advanced," the Government "relies primarily on the proposition that, regardless of whether or not the defendants could be found to have discriminated on the basis of sex, plaintiffs are not entitled to the relief they request." Id. Accepting this proposition, the District Court embraced the standard announced in Day v. Matthews, 530 F.2d 1083 (D.C. Cir.1976), requiring "clear and convincing evidence that, even absent the alleged discrimination, neither plaintiff would have been selected for the jobs under review." Memorandum Opinion, reprinted in J.A. at 15.
In considering the specific vacancies at issue, the District Court found that it need
Turning to one of the remaining two claims, the trial court determined that the appellees had given a sufficient reason for the appellants' rejections in JOA 275. Since Milton rated below the candidate chosen, and Whelan, had she even applied, "would in all likelihood have been rated below the selectee," Memorandum Opinion, reprinted in J.A. at 17a, the District Court found that the evidence was "clear and convincing" that neither appellant was the best qualified for the promotion.
Finally, the court reasoned that the last claim, involving JOA 22, should be rejected because neither applicant had rated high enough to place in the group of candidates selected for interviews. Because the appellants did not challenge the rating system, and because the priority consideration letter could not "abrogate the normal selection procedure should plaintiffs fail even to qualify for the top group from which the selection was to be made," Memorandum Opinion, reprinted in J.A. at 20a, the trial court concluded that, "neither plaintiff would have been selected for [JOA 22] even in the absence of sex discrimination." Id. at 20a-21a.
III. TIME-BARRED CLAIMS
In seeking review of the District Court's decision, the appellants first argue that the trial judge erred in ruling that their claims regarding the first four promotions — JOA 187, 139, 298, and 70 — were time-barred because they had not filed timely administrative complaints. The appellants do not dispute that their first informal administrative complaints were filed more than thirty days after a male had been selected for each of the job openings, and that such a late filing normally would bar their claims regarding those promotions.
The appellees argue that the continuing violation theory cannot be construed to allow all untimely claims. They principally
In holding for the defendant, the Court admonished that "the critical question is whether any present violation exists." Id. at 558, 97 S.Ct. at 1889 (emphasis in original). Even when the employment policies give present effect to a past act of discrimination, a "claim based on [the original] discriminatory act is ... barred." Id. at 555, 97 S.Ct. at 1887. While "[i]t may constitute relevant background evidence in a proceeding in which the status of a current practice is at issue, ... separately considered, [the prior act] is merely an unfortunate event in history which has no present legal consequences." Id. at 558, 97 S.Ct. at 1889.
As two commentators have remarked, "[i]f any aspects of the continuing violation theory survive Evans, they would seem limited to a series of related acts, one or more of which falls within the limitations period, or the maintenance of a discriminatory system both before and during the statutory period." Schlei & Grossman, Employment Discrimination Law 232 (Supp.1979).
The cases of this Circuit fundamentally follow this construction of the continuing violation theory.
Similarly, in Shehadeh v. Chesapeake & Potomac Tel. Co., 595 F.2d 711 (D.C.Cir.1978), this court reversed the District Court's dismissal of an action brought by a woman who alleged that she had been discharged in violation of Title VII. She contended additionally that her former employer had continued to discriminate against her by disseminating untrue information about her to potential employers, thus preventing her from obtaining other employment. The court of appeals upheld her right to bring suit despite her failure to file her administrative complaint until nearly five years after her original discharge.
The Shehadeh court acknowledged that under Evans, a "complainant who is tardy ... in filing his [administrative] discrimination charge ... ordinarily will be denied a judicial audience." Id. at 717-18. "When, however, a continuing discriminatory employment practice is alleged, the administrative complaint may be timely filed notwithstanding that the conduct impugned is comprised in part of acts lying outside the charge-filing period." Id. at 724. The court believed that typical of "continuing violations" were allegations of unlawful hiring and promotion policies, or allegations of unfair bias permeating the employer's personnel practices. "[I]t is the ongoing program of discrimination, rather than any of its particular manifestations, that is the subject of attack." Id. at 724-25.
In Shehadeh the plaintiff alleged that her employer harbored a continuing, unlawful, and hostile bias against her. The charge "made plain that the specified event was illustrative of a long-lasting pattern of like events." Id. at 725. See also Clark v. Olinkraft, Inc., 556 F.2d 1219, 1223 (5th Cir. 1977), cert. denied, 434 U.S. 1069, 98 S.Ct. 1251, 55 L.Ed.2d 772 (1978) (Evans was not applicable since the "allegations of the complaint [in Clark] and testimony in the deposition show that continuing discrimination is under attack. The appellant's action therefore is not time-barred.") The present case, however, sharply diverges from Shehadeh in that the appellants have neither alleged in their complaint nor argued at trial that the appellees' acts constituted continuing discrimination, pervasive bias, or unlawful employment policies, thus entitling them to relief from the time limits in the Code of Federal Regulations. From their complaint and the trial record it is apparent that the appellants seek relief not from an unlawful program of discrimination, but from specific, perhaps unrelated instances of it. For example, the complaint states that "[b]ecause of the non-selection of plaintiff Milton under JOA 275, both plaintiffs filed [an informal administrative] complaint." Complaint, ¶ 17, located in R.1.
The reason for limiting claims to present violations (i. e., those for which a timely complaint was filed or for which a discriminatory scheme is alleged) is to "protect employers from the burden of defending claims arising from employment decisions that are long past." Delaware State College v. Ricks, ___ U.S. ___, ___, 101 S.Ct. 498, 503, 66 L.Ed.2d 431 (1980). Some of the claims in the present case extend back to 1972. Absent allegations connecting these remote claims to the ones for which timely complaints were filed, those personnel actions for which the appellants did not file a timely complaint — JOA 187, 139, 298, and 70 — are now time-barred. The appellants' failure to litigate this issue at trial precludes them from raising it on appeal. Consequently, the only personnel actions properly before the trial court were JOA 22 and JOA 275.
IV. THE CLAIMS OF DISCRIMINATION WITH RESPECT TO JOA 22
Appellants' fifth claim rests on their assertion that they were entitled to relief for the DLA's failure to promote them to JOA 22, even though neither appellant qualified for the top group of five applicants. In their brief discussion of JOA 22, appellants simply argue that the defendants adduced no evidence that the selecting official was compelled to choose the highest ranking applicant.
The major obstacle to the appellants' claim regarding JOA 22 is that they never challenged the fairness or neutrality of the first stage of the selection process — the rating system — in the District Court. Their failure to challenge either their rankings or the validity of the two-stage procedure precludes them from now claiming that they did not need to rank in the top group in order to be selected for the promotion. They cannot here claim discrimination in those procedures that they did not challenge at trial. Consequently, we affirm the trial court's decision, holding that the appellees met their burden of proof in JOA 22,
V. THE CLAIMS OF DISCRIMINATION WITH RESPECT TO JOA 275
Although Milton applied for JOA 275 and was included among the final group of applicants to be interviewed, Whelan elected not to apply for the position. Consequently, before reaching the merits of Whelan's claim of discrimination regarding JOA 275, we must first decide whether she can be considered a "constructive applicant," entitled to relief as if she had applied for the job.
Whelan argues that because of past acts of discrimination she was discouraged from
The leading case discussing constructive applicants is International Brotherhood of Teamsters v. United States, 431 U.S. 324, 97 S.Ct. 1843, 52 L.Ed.2d 396 (1977). In Teamsters, several of the plaintiffs had never applied for the disputed jobs, allegedly because they were aware of the employer's discriminatory policies. Because Congress vested broad equitable powers in courts to fashion the most complete relief possible in Title VII cases, the Supreme Court decided that
Id. at 364, 97 S.Ct. at 1869. The Court recognized that "[a] consistently enforced discriminatory policy can surely deter job applications from those who are aware of it and are unwilling to subject themselves to the humiliation of explicit and certain rejection." Id. at 365, 97 S.Ct. at 1869. "When a person's desire for a job is not translated into a formal application solely because of his unwillingness to engage in a futile gesture he is as much a victim of discrimination as is he who goes through the motions of submitting an application." Id. at 365-66, 97 S.Ct. at 1869-70.
Of course not all nonapplicants are entitled to relief. In order to be treated as a constructive applicant, the plaintiff must "show that he was a potential victim of unlawful discrimination," id. at 367, 97 S.Ct. at 1870, and he carries the difficult "burden of proving that he would have applied for the job had it not been for" the employer's discriminatory practices. Id. at 368, 97 S.Ct. at 1871. See also Reed v. Lockheed Aircraft Corp., 613 F.2d 757, 761-62 (9th Cir. 1980) (relying on Teamsters to reject the argument that the plaintiff suffered no discrimination because she had not applied for a particular training program).
In the present case Whelan applied and was rejected for four job openings before JOA 275 was announced. The selecting officer initially had chosen her for JOA 298, but later General Simon, who had the responsibility for approving job selections, rejected Whelan. The District Court expressly found, and we find no reason to disagree, that the "cancellation of Ms. Whelan's selection would not have occurred had she been a male — she was fully qualified for the post in every conceivably relevant respect." Memorandum Opinion, reprinted in J.A. at 19a. However, although the District Court found that "Plaintiff Whelan, discouraged by her lack of success in having sought promotion to several prior vacancies, did not apply," id. at 17a, it did not expressly find that Whelan qualified as a constructive applicant under the standards set forth in Teamsters. Consequently, even though there appears to be ample evidence in the record to suggest Whelan would have applied to JOA 275 had she not been discouraged by General Simon's action, we leave it to the District Court on remand to decide whether Whelan was indeed a constructive applicant.
We now turn to the appellants' claims regarding the denial of promotion in JOA 275.
The basis for the District Court's decision is flawed, however, because the rating score alone does not determine which candidate is the best qualified for a particular job. Instead, the evidence in the record makes it plain that the rating only determines whether a candidate is to be placed in the top group of applicants to be interviewed by the selecting official. While the standards to be used by the selecting official are not set forth in the record, it is apparent that he does not rely solely on the rating system to make his decision. For if the selecting official needed no information other than the relative ranking of the candidates before the interview, there would be no purpose in the interview itself.
Our conclusion that the rating scores alone are not a legitimate reason for the non-selection of the appellants (assuming, of course, that they have been chosen for the top group) is borne out by the evidence in the record. Plaintiff's Exhibit 8, tab F, which was admitted into evidence, contains the notes of an EEOC investigator. From those notes it is plain that the highest ranking candidate was not selected to fill the vacancies in JOA 70 and 139. In JOA 298 the selectee did not come from the top group at all, but was hired laterally. Consequently, the selecting official's decision following the interview must involve more evidence than provided by the relative rankings of the candidates before the interview.
Accordingly, we conclude that the trial court did not identify any legitimate reason, as articulated by the appellees during trial, sufficient to establish that the appellees have satisfied their burden of proof. Consequently, we remand the case to the District Court to determine whether there is on the existing record a legitimate non-discriminatory reason for not promoting the appellants, and if so, whether there is clear and convincing evidence that, even absent the alleged discrimination, neither appellant would have been selected for the job under review. See note 17, supra.
We affirm the holding of the District Court that the appellants' claims on JOA 187, 139, 298, and 70 are "time-barred," because those claims were not filed until after the applicable limitation period had run. We also affirm the holding of the District Court that as to JOA 22 the appellees met their burden of proof, and that the appellants failed to rebut that proof. However, with respect to the appellants' claim regarding JOA 275, we reverse the District Court's holding that the appellees carried their burden of articulating a legitimate non-discriminatory reason for not promoting the appellants; we therefore remand
The appellants do not challenge the validity of this regulation.
Although the Conference Report's discussion of "continuing violation" made explicit reference only to § 706, 42 U.S.C. 2000e-5 (the provision applicable to privately employed workers), and not § 717, 42 U.S.C. 2000e-16 (1976) (the provision for federal employees), we believe that the continuing violation theory is fully applicable to complaints filed pursuant to § 717. The "continuing violation" principle is a judicial creation designed to carry out the congressional intent of affording the most complete relief possible in Title VII cases. Surely, the reasons for permitting departure from the strict application of time limits for federal employees are not significantly different than the corresponding reasons concerning privately employed workers. See Johnson v. Bergland, 614 F.2d 415 (5th Cir. 1980) (assuming without discussion that the "continuing violation" theory applied to suits filed under § 717).
Additionally, it should be noted that the appellees have raised no objection to the District Court's application of Day in this case.