Harris v. Marsh

OPINION AND ORDER

I. OVERVIEW AND OPENING COMMENTARY

Racism, and all its collateral effects, is a doctrine abhorrent to any modem, civilized society. “At its core, it is an act of violence — a denial of another’s right to equal dignity.” Goodman v. Lukens Steel Co., — U.S. -, 107 S.Ct. 2617, 2629, 96 L.Ed.2d 572 (1987) (Brennan, J., concurring in part, dissenting in part). Unfortunately, in the not very distant past, racism “was openly acknowledged as official policy of the United States government.” R. Klu-ger, Simple Justice 84 (1977). Laws designed to assure the inferiority of black citizens remained on the books until well into this century. Id., Johnson v. Halifax County, 594 F.Supp. 161, 164-65 (E.D.N.C.1984) citing Gingles v. Edmisten, 590 F.Supp. 345, 359-61 (E.D.N.C.1984), aff'd in part, rev’d in part, sub nom. Thornburg v. Gingles, 478 U.S. 30, 106 S.Ct. 2752, 92 L.Ed.2d 25 (1986). See also B.D. Adams, The Survival of Domination: Inferiorization and Everyday Life, 21-24 (1978). Indeed, discrimination as a matter of state policy continues to flourish in many parts of the world.

Fortunately, the policy of the United States government has changed. Notwithstanding that fact, however, significant effects and results of the previous policy linger. Prior state-condoned racism encouraged similar attitudes among our citizens which have persisted long after state policy has been reversed. Snell v. Suffolk County, 611 F.Supp. 521, 530-31 (E.D.N.Y.1985), aff 'd, 782 F.2d 1094 (2d Cir.1986). Many claims of discrimination today deal with systemic, subtle and stereotypical practices which developed when overt discrimination was lawful and remain imbedded in basic institutional or organizational structures. Belton, Burdens of Pleading and Proof in Discrimination Cases: Toward a Theory of Procedural Justice, 34 Vand.L.Rev. 1205, 1224 (1981). To understand why this has occurred, one need only consider the definition of racial prejudice.

*1220 Invidious discrimination, in the form of racial prejudice, is the “result of subjective, irrational perceptions, which drain individuals of their dignity because of their perceived equivalence as members of a racial group.” Shaare Tefila Congregation v. Cobb, 785 F.2d 523, 528 (4th Cir.1986) (Wilkinson, J., dissenting). “Misperception lies at the heart of prejudice and the animus formed of such ignorance sows malice and hatred wherever it operates without restriction.” Id. at 529.

It is not surprising that prejudice and racial stereotyping have, at times, “severely impaired the operating effectiveness of our society.” J. Levin, The Functions of Prejudice 33 (1975). Yet, discrimination persists, in part because of its function in the lives of certain members of the minority and majority groups involved. Snell v. Suffolk County, 611 F.Supp. at 529. For members of the perceived majority group, prejudice may be used to displace aggression, protect self-esteem, define self-image, and reduce uncertainty about the world as they view it. Id. citing The Functions of Prejudice at 61-62. For members of the perceived minority group, prejudice directed against it “often exerts pressure for group cohesiveness and pride, forces emphasis in its history and achievement, and brings about the development of organizations which further its interests as a group.” Id. at 100.

However, racial prejudice is not strictly limited to members of the “majority.” Unfortunately, persons of any color or national origin are susceptible to the mispercep-tions and animus referred to by Judge Wilkinson. No segment of our society’s population possesses a monopoly on morality in this regard. Reverse racial discrimination by blacks against whites can be and, on occasions, has been as virulent and diseased as the discrimination by whites against blacks. One need only recall the race riots which engulfed our inner cities in the 1960’s and 1970’s to comprehend this phenomenon.

Notwithstanding the above, however, this nation can generally point with some pride to the remarkable progress that has been made in the last four decades in eliminating the effects of past discrimination. Some of the improvement is directly attributable to anti-discriminatory laws passed by Congress and the state legislatures, such as the Civil Rights Act of 1964, upon which this action is predicated, and the strict enforcement of those laws by the courts. But much of the change has stemmed from educative institutions substantially more powerful than the courts or the political branches of government. Progress has most significantly occurred through the schools, churches and synagogues of this nation as well as from the example of enlightened public leaders representing all aspects of our society. With notable exceptions, widespread segregation in the nation’s academic institutions, public facilities, and places of employment has ended. Racial discrimination at the ballot box, in the halls of justice, and in the legislative chambers is no longer tolerated. Equal academic and employment opportunity has become the rule rather than the exception. Racial tensions in this country, by anyone’s definition, have diminished in recent years through the persistent and cooperative efforts of hundreds of thousands of our citizens.

By the above statements, the court does not blithely suggest that racial discrimination in this nation has been eradicated. To the extent that dream can ever be realized, it certainly has not yet come true. Race remains this nation’s most divisive problem. Subtle vestiges (and some not so subtle) of heretofore overt discrimination and racism continue in many aspects and segments of our society as the frequent and disgusting marches of the Klu Klux Klan and the recent incidents in Howard Beach, New York and Forsyth County, Georgia, make all too clear. 1 Fort Bragg, North Carolina, site of the litigation at bar, *1221 being a microcosim of that society, is not immune from this disease of the heart and mind. Nonetheless, comparing the status of race relations in the United States, in general, and at Ft. Bragg, in particular, one cannot help but notice the progress which has been achieved over the last twenty years. 2

Whatever prejudice continues to manifest itself in society at large, Congress has flatly ruled that it will not be allowed, in any form or degree, in the workplace of the United States. Prejudice, whether blatant or subtle, practiced by black or white, invoked by those wearing blue collars or white collars, or wearing officers’ uniforms or grey flannel suits, will not be tolerated when directed against employees in the workplace. Snell v. Suffolk County, 611 F.Supp. at 531. Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq., as enacted, serves as a check on the legitimate exercise of an employer’s discretion vis-a-vis the improper exercise thereof. To this end, the statute promotes the national policy of equality of treatment between persons of different races, colors, religions, sexes, and national origins. “The broad, overriding interest, shared by employer, employee, and consumer, is efficient and trustworthy workmanship assured through fair and racially neutral employment and personnel decisions.” McDonnell Douglas Corp. v. Green, 411 U.S. 792, 801, 93 S.Ct. 1817, 1823, 36 L.Ed. 2d 668 (1973).

Title VII, thus, provides a comprehensive federal remedy for employees injured by the use of “artificial, arbitrary, and unnecessary barriers to employment when the barriers operate invidiously to discriminate on the basis of racial or other impermissible classifications.” Griggs v. Duke Power Co., 401 U.S. 424, 430-31, 91 S.Ct. 849, 853, 28 L.Ed.2d 158 (1971). Simply stated, Congress enacted Title VII as a broad remedial statute of the highest priority, designed “to make persons whole for injuries suffered on account of unlawful employment discrimination.” Albemarle Paper Co. v. Moody, 422 U.S. 405, 418, 95 S.Ct. 2362, 2372, 45 L.Ed.2d 280 (1975). Consistent with this purpose, and mindful of the crucial role played by the private litigant in the statutory scheme, many procedural provisions of the Civil Rights Act have been liberally construed by the courts in favor of the complaining employee in a determined effort to reach the merits of any cognizable allegation of discrimination. See Love v. Pullman Co., 404 U.S. 522, 527, 92 S.Ct. 616, 619, 30 L.Ed.2d 679 (1972); Shehadeh v. Chesapeake & Potomac Telephone Co., 595 F.2d 711, 727 (D.C.Cir.1978); Sanchez v. Standard Brands, Inc., 431 F.2d 455, 462-63 (5th Cir.1970); Dickey v. Greene, 603 F.Supp. 102, 105 (E.D.N.C.1984).

Notwithstanding all of the above, however, the mere fact that an individual may hold the keys to the courthouse door does not imply that he may enter with disregard for his actions therein or disdain for the rights of all other parties to the litigation. As the court has taken pains to note, the issue of racial discrimination in this nation is long-standing and remains a terribly serious one. Charges of racism, if proved, carry an enormously stigmatizing effect. Accordingly, such charges should only be leveled after careful investigation, thoughtful deliberation, and never without a reasonable basis in law and fact. 3 This admonition becomes increasingly true as the number and intensity of the charges increase.

Unfortunately, like all humanitarian remedies, Title VII is subject to abuse by those *1222 for whom the remedy was recognized and enacted. It is with the greatest of disappointment that this court finds itself in the unavoidable position of having to declare that this litigation represents a paradigm of such abuse.

Harris, et al. v. Marsh, 81-60-CIV-3, and Loftin v. Marsh, 80-168-CIV-3, are employment discrimination actions brought under Title VII of the Civil Rights Act of 1964. Harris was filed on September 14, 1981, and was brought as a class action by plaintiffs Mattiebelle Harris, Samuel Sheppard, Sandra Blue, Edward Humphrey and Robert Evans. Loftin was initiated by complaint filed August 29,1980, as an individual lawsuit. The two actions were consolidated for discovery and trial on March 31,1982. Broadly stated, plaintiffs alleged that they and other black civilian employees at Ft. Bragg, North Carolina, had been discriminated against in numerous employment opportunities by the defendant because of their race and color.

After an extraordinary amount of discovery was exchanged, (this exchange being generally one-sided with plaintiffs doing the discovering and defendant doing the disclosing), a hearing was held on May 17, 1983, to determine whether the litigation would proceed as a class action. After review of the extensive evidence presented, the court rendered its decision denying class certification. Harris v. Marsh, 100 F.R.D. 315 (E.D.N.C.1983). See also discussion infra at 1227-1228. Subsequently, forty-four (44) individuals were allowed to permissively intervene into the action. Eleven (11) of the intervenors withdrew their claims prior to trial. Motions to dismiss most of the claims of the remaining plaintiffs and plaintiff-intervenors (hereinafter simply “plaintiffs”), on procedural grounds were denied and trial of this case began on January 23,1984. During trial, a number of plaintiffs moved to dismiss their claims and these motions were granted with prejudice upon the condition that sanctions might issue at the termination of all proceedings due to the bad-faith post-trial abandonment of claims and their frivolous nature.

The enormity of this massive litigation may be gleaned from a review of a few representative statistics. The trial of this action, prior to a July 31, 1985, final settlement which essentially dismissed with prejudice nearly all of the substantive claims at issue, 4 see discussion infra at 1237, required ninety-three (93) days of testimony and evidence. Two hundred and fifty-six (256) witnesses testified during these proceedings, some more than once. At the court’s request, over thirteen thousand (13,000) select pages of transcript have been produced by a veritable host of court reporters. Over twelve hundred (1,200) exhibits were admitted into evidence, many containing fifty (50) plus pages. One hundred forty-nine (149) depositions were filed with the court and the court file in this case is now contained in fifty-eight (58) 12" x 16" boxes in a separate room of the federal courthouse in Fayetteville. The docket sheet for this litigation, now thirty-seven (37) pages in length, reflects that the court has issued ninety-five (95) written orders of substance during the course of this proceeding and the parties have filed more briefs and memoranda than the court has time or the inclination to count. In sum, this case represents an expenditure of an extraordinary amount of time and resources for all concerned, with millions of dollars spent on its defense and prosecution. It is the largest civil rights action ever tried by the Department of the Army.

The charges of discrimination in this case were nearly unlimited in their geographic and legal scope. Plaintiffs attacked, broadside, every aspect of the defendant’s merit promotion process. The judicial complaint alleged, often in scathing and conclusory terms, that defendant engaged in racially discriminatory employment practices in the following areas: (1) promotions, (2) pay for similar work by comparatively qualified black and white employees, (3) merit pay increases, (4) assignment of black employ *1223 ees to lower level positions, (5) underrepre-sentation of black employees at higher general schedule and supervisory positions, (6) job performance evaluations, (7) discipline, (8) use of subjective employee selection criteria, (9) reductions-in-force (RIF), (10) retaliation for exercising rights under Title VII, and (11) harassment. 5 Engrafted upon these base-wide issues were the individual claims of the plaintiffs.

Two final pre-trial orders were filed in this action, totalling four hundred thirty (430) pages. Plaintiffs contended there were forty (40) legal issues to be determined at trial, with defendant arguing the existence of one hundred twelve (112) triable issues. Disregarding any allegation of discrimination for which evidence was to be introduced solely for background purposes, plaintiffs alleged one hundred fifty (150) specific claims for relief. Plaintiffs’ proposed list of witnesses for trial totalled two hundred seventy-five (275) while defendant’s list totalled approximately eleven hundred (1,100). Between the parties, the proposed exhibits numbered for trial was in the thousands.

Given the breadth of the charges leveled against defendant, the court doubts that any functional or geographic area of Ft. Bragg was left untouched. A review of the pleadings and discovery in this case reveals that hundreds of military and civilian officials were charged with racially discriminatory actions. Indeed, the allegations were stunning in their pervasiveness and tenor for nary a corner of Ft. Bragg was rendered unaffected by the claims at bar.

Considering the magnitude of this action, and its obvious potential for (1) impacting on the entire civilian personnel process at Ft. Bragg, (2) disrupting the working environment and, indeed, lives of many of the officials named in the plaintiffs’ charges of discrimination, and (3) inflaming the passions of all the participants in this litigation on both sides of the issue, the court reasonably expected plaintiffs and their counsel to not only zealously advocate their claims, but also to properly temper their enthusiasm with careful regard for the obligations of truth, candor, accuracy, and in counsel’s case, the exercise of sound professional judgment. To the court’s profound dismay, the latter corollary obligations were not fulfilled.

Although the court did not hear testimony on a number of claims initially raised due to the July, 1985, settlement of much of this case, the 93 days of testimony encompassed all the prosecuted substantive allegations of six plaintiffs, as well as testimony on a number of individual claims of other plaintiffs heard for the express purpose of determining, inter alia, whether sanctions for the filing of frivolous and abandoned allegations were appropriate. A review of the evidence in this case — and the court has exhaustively reviewed its trial notes, the record, the transcript and the admitted exhibits — reveals that many of the plaintiffs’ claims for relief were frivolous and without foundation.

*1224 The absolute lack of credible evidence supporting so many of the allegations heard is deeply troubling. There were claims tried where the individual plaintiff was unable to produce any evidence of discrimination or retaliatory conduct on the part of defendant. See, e.g., Sheppard’s promotion claims under Merit Promotion Announcements 200-79 and 201-79, Blue’s promotion claims under Merit Promotion Announcements 273-79 and 303-79. To be sure, the court is cognizant of the fact that instances will occur where individuals will be passed over for a particular promotion and, in such situations, it is not an uncommon experience for that person to feel he was more deserving of the promotion or perhaps even more qualified than the selectee. Edwards v. Marsh, 644 F.Supp. 1564 (E.D.Mich.1986). Nevertheless, because there are often a myriad of considerations that accompany a promotional decision, the burden must rest on a plaintiff to show at least some modicum of impropriety in the decision in order to raise an inference of discrimination. Yet, time after time in this case, plaintiffs’ evidence, shorn of all its incredible underpinnings, simply came down to an assertion by the plaintiff that she/he was black, the supervisor or selecting official was white, and an adverse employment action had occurred. Such minimal evidence clearly does not meet the McDonnell Douglas test for establishing even a prima facie case of disparate treatment. See Holmes v. Bevi-lacqua, 794 F.2d 142 (4th Cir.1986) (en banc).

Just as disturbing, however, was the utterly incredible nature of a number of the plaintiffs’ testimony. The testimony of plaintiffs Sheppard, Blue, Ballew and Beulah Mae Harris, in particular, was astounding for its lack of candor and truthfulness. These plaintiffs consistently testified either out of shocking ignorance or stunning disregard for the veracity of their allegations. 6 Inconsistencies and evasiveness abound in their testimony and self-serving lapses of memory are fatally pervasive. Some of the factual allegations can most charitably be termed “fantasies.” The court cannot honestly recall another witness with whom it has been less favorably impressed than these four in all its years on the bench and in practice. Reading the transcript of their testimony, particularly the government’s devastating cross-examination, leads to one undeniable conclusion —on a number of occasions, Sheppard, Blue, Ballew and Harris lied. 7

In addition, contributing to plaintiffs’ problems in this litigation was their unyielding and erroneous view of what constitutes discrimination in a promotion decision. By way of example, plaintiff Sheppard testified that in a promotion action, if blacks are “underrepresented” within a particular organization based upon an undifferentiated labor market and a black is among those referred for selection, the black referee must be “strongly considered” for the position. Upon being asked how one would know if one had been “strongly considered” he testified, “If you’re not selected, you haven’t been strongly considered.”

The apparent disseminator of this view is the former Equal Employment Opportunity (EEO) officer, James Canady, a witness for the plaintiffs, who incredibly testified that *1225 it is deliberate discrimination if, where blacks are “underrepresented” according to the Ft. Bragg Affirmative Action Plan (AAP) and Federal Equal Opportunity Recruitment Program (FEORP), a black on the referral list is either not selected or the selecting official does not set out in writing that he has given “great weight” to the underrepresentation consideration. Cana-dy admitted on cross-examination that this view of discrimination was not written anywhere nor was he able to cite any authority for this creative proposition.

Testimony similar to Sheppard’s and Canady’s can be found in plaintiff Mattie-belle Harris’ case, where she testified that in her opinion the AAP required the selection of a black where underrepresentation was noted. In her case, Canady went even further to suggest that in his opinion blacks should be represented throughout the workforce in the same proportions that they are found in the local undifferentiated labor market. To assert that any ethnic group should be represented in skilled positions such as engineers or physicians in proportion to their overall general representation in the community, regardless of education, experience and merit, is absurd. See Johnson v. Transportation Agency, Santa Clara County, California, — U.S. -, 107 S.Ct. 1442, 1454, 94 L.Ed.2d 615 (1987); Hazelwood School District v. United States, 433 U.S. 299, 308 n.13, 97 S.Ct. 2736, 2742 n.13, 53 L.Ed.2d 768 (1977); EEOC v. Western Electric Co., 713 F.2d 1011, 1018 (4th Cir.1983); Paxon v. Union National Bank, 688 F.2d 552, 564 (8th Cir.1982); Woodard v. Lehman, 530 F.Supp. 139, 145 (D.S.C.1982); Jones v. First Federal Savings & Loan Assoc., 546 F.Supp. 762, 774 (M.D.N.C.1982). Canady then reiterated his view that a showing of underrepresentation obligated management to give what amounted to a preference for black applicants and, where this preference was not effected, discrimination under Title YII was presumed. These views were echoed throughout this litigation by plaintiffs and, to a great extent, their counsel. Although this concept will be discussed more thoroughly infra, it suffices to state that Canady’s theory is without support in the law. See, e.g., Valentino v. United States Postal Service, 674 F.2d 56 (D.C.Cir.1982); Frink v. United States Navy, 16 FEP Cases 67 (E.D.Pa.1977). “The fact that the [Army] itself in its Affirmative Action Plan has made comparisons to general labor force statistics to determine if minorities are underrepresented is not binding [under Title VII]. Whether or not the [Army] makes a pointless comparison to general labor force statistics, a violation of Title VII can only be established with probative statistical evidence utilizing comparisons to an appropriate labor market.” Frink, 16 FEP Cases at 71 (emphasis added). See generally Hazelwood School District v. United States, supra; EEOC v. Federal Reserve Bank of Richmond, 698 F.2d 633 (4th Cir.1983), rev’d on other grounds sub nom. Cooper v. Federal Reserve Bank of Richmond, 467 U.S. 867, 104 S.Ct. 2794, 81 L.Ed.2d 718 (1984).

As to statistical evidence in general, the record is shocking not so much for what is shows as for what it fails to show. In some claims, like those of Sandra Blue, there simply was no statistical presentation made by the plaintiffs, see findings and conclusions infra, even in support of her disparate impact allegations. In other cases, where statistics were presented, the analysis was so fraught with inaccuracies, inconsistencies, and inappropriate methods of comparison that the evidence was rendered totally unreliable and incredible. See, e.g., testimony of plaintiffs’ expert Dr. Alan Parrow in claims of Mattiebelle Harris and Samuel Sheppard. 8

*1226 Finally, the court comes to the issue which ultimately led the defendant to move, in a number of cases, for the imposition of sanctions, including attorney’s fees and costs. For various reasons, after trial of this action began, thirteen (13) plaintiffs moved to withdraw and dismiss their claims. See discussion infra. In some cases, the reasons were financial; in other cases, personal. In all cases, defendant argued that the real motive behind the plaintiffs’ respective motions was that their claims were groundless and frivolous and, as such, plaintiffs simply wanted out of the lawsuit. Thus, defendant moved the court to impose an award of fees and costs upon the plaintiffs for abuse of the judicial process which defendant claimed resulted in monetary loss to the defendant, interference with the proper defense of other claims, and a waste of judicial resources. Although many of these claims likewise were settled in July of 1985, defendant’s motion with respect to the claims of Beulah Mae Harris remains for disposition.

In addition, with respect to those plaintiffs whose cases were heard by the court, allegations of discrimination which had been set forth as claims for relief in the final pre-trial orders were abandoned prior to trial of each plaintiff’s case and never pursued. Defendant, having spent enormous amounts of time and resources preparing to defend these claims was, needless to say, perturbed by this startling change of events. So was the court, for the final pre-trial order in any case must be viewed as binding on all parties to the litigation. Defendant had a right to rely on the pretrial orders sub judice and to prepare accordingly. Yet, when the time came to try each plaintiff’s claims, defendant was legitimately surprised by what claims that plaintiff was not pursuing. Plaintiffs’ view appeared to be that since defendant effectively “won” on any claim not prosecuted, defendant could not be heard to complain— no harm, no foul. This cavalier attitude toward the physical and fiscal resources of the defendant and the court (which also prepared for the trial of these claims) was and remains shocking. See findings and conclusions infra at §§ VI and VII.

In sum, background claims (some never denominated as such) and claims for relief were abandoned and merged with lightening speed (time being relative in this lawsuit) at the whim of the plaintiffs and without any advance notice to defendant or the court. One was never certain, even on the eve of trial, of exactly what claims plaintiffs were pursuing, whether designated claims would be expressly waived, or whether claims, clearly designated for trial in the pre-trial order, would simply creep slowly and silently away into the night never to be heard from again. Such litigation practices are intolerable and patently unfair to the opposing party, regardless of his relative resources.

All of the above circumstances lead the court to the inexorable conclusion that as a *1227 whole, defendant has been forced to defend an extraordinary lawsuit that was, with rare exceptions, groundless from the beginning. Plaintiffs seemingly viewed every adverse employment decision by agents of the defendant as racially motivated, regardless of the merits of the decision. This was true, even in cases where the plaintiff obviously was not qualified for the position sought, deserved the discipline rendered, or was a disruptive and unproductive employee. It is with great reluctance that the court finds it must hold that to the extent any racism was proven in this case, such discrimination was generally perpetrated by the plaintiffs upon the defendant, not the reverse, for it was the plaintiffs who consistently saw every criticism and action in a blindly racial context.

The defense and trial of this case involved an enormous expense to the taxpayers of the United States. Such a needless drain on the manpower and public coffers of this nation cannot be viewed lightly. Plaintiffs and their counsel blatantly disregarded the cost of this litigious exercise to both the defendant and to society. As a result, the most extensive, and quite probably costly, litigation this district has ever seen took place over a span of four years— litigation which will end in this court today with no real winners and some very real losers.

Although the court has touched upon some of the background of these proceedings in this opening commentary, a preface to the court’s findings of fact and conclusions of law with respect to the claims of plaintiff Blue and defendant’s motion for sanctions and fees against Blue and Harris is required in the form of a more detailed

II. HISTORY OF THE PROCEEDINGS

As previously noted, this action was commenced by complaint filed September 14, 1981. Plaintiffs contend that they and other similarly situated black civilian employees at Ft. Bragg, North Carolina, were discriminated against and denied equal employment opportunities on the basis of race in violation of Section 717(a) of Title VII, 42 U.S.C. § 2000e-16(a). Plaintiffs seek in-junctive relief, back pay, and other equitable relief for themselves and a class of all past, present and future black employees of the defendant who were employed by defendant at any time since March 24, 1972, and who were discriminatorily denied civilian employment opportunities on the basis of race.

The defendant, John O. Marsh, is Secretary of the United States Army, and in that capacity, is responsible for the various employment practices challenged at Ft. Bragg; this location being a facility of the United States Department of the Army comprising the [¶] XVIII Airborne Corps and Ft. Bragg and Tenant Units.

Ft. Bragg and neighboring Pope Air Force Base comprise one of the world’s largest military installations. Indeed, Ft. Bragg’s population of 157,000 ranks it as the fifth largest “city” in North Carolina. As might be expected, an installation of this size requires significant “support” services and, in that capacity, defendant employs approximately 4,000 civilian employees annually. The civilian employees are assigned to various units or divisions of the base and provide clerical, technical and professional assistance for the armed forces’ personnel assigned to the facility. Plaintiffs are or were all employed in this capacity.

Shortly after the initiation of this lawsuit, what was to be a long and exhausting discovery process commenced. Between November of 1981 and February of 1983, an extraordinary amount of information was exchanged between the parties with a maximum of effort and a relative minimum of motions, as evidenced by the sheer number of depositions filed with the court, documents produced in response to various requests, and interrogatories answered.

Trial was originally scheduled for May 9, 1983. On February 23, 1983, defendant requested a determination that the case not proceed as a class action. The court denied the motion, but directed plaintiffs to move for class certification by April 18,1983, and continued the trial date to August 1, 1983. *1228 Plaintiffs properly filed their motion and defendant timely responded. A hearing was conducted on May 17, 1983, at which plaintiff adduced further evidence. Following the hearing, supplemental pleadings were filed by both sides. By order dated June 30, 1983, the court denied plaintiffs’ motion, holding that plaintiffs had failed to meet the factual burden established in General Telephone Co. of Southwest v. Falcon, 457 U.S. 147, 102 S.Ct. 2364, 72 L.Ed.2d 740 (1982), for class claims and a memorandum opinion followed. Harris v. Marsh, 100 F.R.D. 315 (E.D.N.C.1983).

As an initial matter, the court observed that plaintiffs’ primary challenge was to defendant’s promotional process and, absent any specific attack on an isolated, facially neutral requirement within that process, plaintiffs’ general promotion claims were most properly analyzed under the disparate treatment theory. Id. at 322. Although as this case progressed, certain individual adverse impact claims arose, such as one of Blue’s claims still in issue, this finding has generally retained its validity. 9 The court’s review of the anecdotal and documentary evidence presented by the plaintiffs failed to establish “that a significant number of the alleged class members have been discriminated against in the same way as have the named plaintiffs.” Id. Furthermore, the court found that plaintiffs’ statistical presentation failed to raise any compelling inference of discrimination. Indeed, defendant’s unre-futed evidence demonstrated that blacks have been favored in promotions:

PROMOTION OF BLACKS AT FORT BRAGG

Blacks in Ft. Bragg Work Force Actual Promotions

1979 22.9% 21.6%

1980 22.8% 24.2%

1981 23.5% 23.9%

Id. at 323.

In reviewing the requirements of Rule 23(a) of the Federal Rules of Civil Procedure, the court held that “[p]laintiffs have offered scant evidence as to the alleged claims of fifty-five employees ... [with] most of these individuals [failing to] to present a prima facie case of discrimination.” Id. at 324. 10 As a result, the court found that plaintiffs failed to meet the numerosity requirement. Id.

With regard to typicality, the court held that “[t]he statistics tend to reveal that black employees at Ft. Bragg are, in general, promoted in proportion to their numbers in the work force, receive awards in that proportion, and are trained in the same manner as their counterparts.... The statistics ... suggest that [ ] discrimination is the exception rather than the rule.” Id. at 324-25. 11 Accordingly, the court found that plaintiffs failed to meet the typicality and adequacy of representation requirements of Rule 23(a). Id. at 325.

Immediately after class certification was denied, forty-four (44) members of the disappointed class plaintiffs sought to represent moved to intervene as party-plaintiffs. 12 Over strenuous opposition of the defendant, the court allowed the movants to permissively intervene, pursuant to Rule 24(b)(2), holding that “while classwide relief may not be available.... [t]here is a *1229 common nucleus of law and fact among [the proposed intervenors’] claims.” Order of August 25, 1983, at 2. See Hill v. Western Electric Co., 672 F.2d 381 (4th Cir.1982) (holding that upon denial of class certification, motions for intervention by members of the putative class should be liberally allowed). Upon order of the court, an Amended Complaint-in-Intervention was filed on August 25, 1983, and the trial date was eventually re-scheduled for January 23, 1984.

For the next several months, discovery regarding the intervenors was conducted at a rapid pace with omnibus pre-trial motions being advanced by both sides, particularly the defendant. 13 As a result of all this activity, the court entered a responding omnibus order disposing of all pending motions at the final pre-trial conference in December of 1983. In sum, the court held that:

(1) The motion of eleven (11) intervenors for leave to withdraw as plaintiffs, filed within approximately one month of their initial motion to intervene, was allowed; 14

(2) Counsel for plaintiffs satisfactorily resolved a host of potential conflicts among the plaintiffs by agreement of various in-tervenors and named plaintiffs not to pursue fifteen (15) competing promotion claims; 15

(3) Defendant’s motion for summary judgment as to plaintiff-intervenor Catherine Gutierrez was allowed as her claims turned out to be wholly atypical and therefore not the proper subject of permissive intervention;

(4) Although plaintiffs’ motion to compel the production of a computer readable database prepared by the defendant’s experts for trial was denied, all of the raw data upon which the base was predicated, i.e., all of the relevant promotional files at Ft. Bragg, was ordered made available to the plaintiffs for inspection and copying. Of course most of this material had already been disclosed to plaintiffs long before this order;

(5) Defendant’s motion for partial summary judgment against some of the claims of twelve (12) plaintiffs on grounds that these claims were previously administratively resolved and settled was denied. The court found the existence of a factual dispute as to the validity and effect of any such release, see Alexander v. Gardner-Denver Co., 415 U.S. 36, 94 S.Ct. 1011, 39 L.Ed.2d 147 (1974), and established a procedure to hear evidence on these disputes prior to the start of each plaintiff’s claim; 16

(6) Defendant’s motion for partial summary judgment against sixty-seven (67) claims of twenty-two (22) plaintiffs on grounds that these claims were not ripe, i.e., that these plaintiffs filed suit prior to any final agency decision on their EEO complaints and prior to the passage of 180 days, as required by 42 U.S.C. § 2000e-16(e), thus, failing to exhaust their *1230 administrative remedies, was denied. 17 The court held that exhaustion of administrative remedies was not required where, as in this case, the named plaintiffs exhausted their administrative remedies and exhaustion by the intervenors similarly situated, would have been futile. Lilly v. Harris-Teeter Supermarket, 720 F.2d 326 (4th Cir.1983); Foster v. Gueory, 655 F.2d 1319 (D.C.Cir.1981); 18

(7) Defendant’s motion for partial summary judgment against thirty-five (35) claims of eleven (11) plaintiffs on grounds that these claims were not presented to an EEO counselor within thirty (30) days of the alleged discriminatory act, as required by 29 C.F.R. § 1613.214(a)(i) (1983), was denied. 19 Extending the logic of Lilly v. Harris-Teeter Supermarket, supra, the court found that as long as the alleged act of discrimination occurred after March 3, 1980, the claim need not have been the subject of any EEO complaint. In addition, each claim in this category was held subject to equitable tolling; 20 and

(8) Defendant’s motion for summary judgment against twenty-four (24) claims of thirteen (13) plaintiffs 21 was granted on grounds that these claims arose more than thirty (30) days prior to the filing date of the administrative class complaint. 22 See n. 18, supra.

Upon further ruling June 30,1983, as the forward cut-off date for any claim at bar and bifurcating the trial on issues of liability and damages, the final pre-trial orders, as previously described supra at 1223, were filed. Trial of this action commenced, most appropriately, at high noon on January 23, 1984, in Fayetteville. 23

*1231 According to the final pre-trial orders, trial time for the claims of the remaining thirty-eight (38) plaintiffs was estimated by the parties at nine (9) weeks. This case, among others, has since convinced the court never to trust trial counsel’s view of how long their case will take. From the onset, it became apparent to everyone that this prediction of trial length was vastly understated. Significant evidentiary and procedural problems surfaced immediately, an omen of events to follow. Questions were raised concerning (1) the applicability of the forward cut-off date to allegedly on-going claims of retaliation and harassment; (2) what claims were specifically designated for relief and what claims were introduced solely for background purposes; 24 (3) the order of witnesses and the scope of their testimony; (4) the scope of cross-examination and of re-direct; (5) redaction of contested exhibits; (6) the use of cumulative and repetitive testimony; (7) the use of statistics within the Ft. Bragg AAP; (8) the evasiveness of witnesses; (9) the attempted impeachment of witnesses by collateral contradiction; (10) the admissibility and weight to be given findings and recommendations of the EEOC and the intermediate findings of the agency’s administrative bodies; (11) the admissibility of evidence of alleged discriminatory acts committed by supervisory personnel at Ft. Bragg against third party civilian employees, where the supervisor is not charged by the plaintiffs with being an alleged discriminatory official (ADO); (12) the time-consuming process of reading, line by line, portions of exhibits introduced into evidence; and (13) the admissibility, pursuant to Fed.R.Evid. 801(d)(2)(D), of statements offered against the defendant, made by ADO’s and non-ADO’s while employed at Ft. Bragg concerning personnel decisions rendered by that official.

In addition to these problems, simply attempting to master the merit promotion process at Ft. Bragg, the terminology employed by both civilian and military personnel at the installation, and the organizational structure of the base itself became a challenging and time-consuming, if less than exciting, daily adventure into the unknown for the court. Complicating the trial process even further was the simple fact that plaintiffs’ case was, from its initiation, poorly prepared with essential groundwork for important testimony never laid. 25 Often, testimony in plaintiffs’ case-in-chief was left hanging and wholly ambiguous until the defendant could fill in (and overrun) the gaps with his own witnesses.

All of the above factors, of course, led to an exorbitant increase in trial time per plaintiff per claim. The final pre-trial order listed nine (9) specific claims for the first plaintiff, Mattiebelle Harris. Three (3) weeks after the trial started, the court was still listening to testimony in the claim of Mattiebelle Harris. Indeed, Ms. Harris herself testified for over five (5) days.

Faced with the intolerable prospect of trying the remainder of the case at the pace established by the Harris claims, the court, on March 20, 1984, issued a lengthy procedural order re-defining the rules of the game from that date forward. 26 Individual trial briefs were required for each plaintiff’s case. Particularized identification of claims, witnesses, their testimony, and exhibits was mandated. 27 Deadlines for proposed findings of fact and conclusions of law were established. Additional pre-trial stipulations were strongly encouraged. Background organizational and com *1232 mand structure evidence was ordered at the introduction of each claim.

Time limitations per plaintiff and written direct testimony were threatened. All ongoing evidentiary disputes were resolved, many in favor of the position advanced by the plaintiffs. See Order of March 20, 1984, at Section XIII, paras. C, G, L, N, and O, pp. 13-16. 28

Evidence on the claims of Mattiebelle Harris concluded on February 17,1984, and the Sheppard claims began, after a delay, on March 26, 1984. 29 The court notes that the plaintiffs’ process of abandoning claims during trial began early with the Sheppard case. Just by way of example, Sheppard alleged seven (7) claims for relief in the Final Pre-Trial Order, see p. 23, including claims for the discriminatory denial of Merit Promotion Announcement (MPA) 33-80, discriminatory detailing, denial of training, and evaluation. Yet, when Sheppard’s pretrial brief of March 26, 1984, was filed, only three (3) claims for relief were alleged —MPA 33-80 and the detailing, training, and evaluation claims were not among them. See Sheppard’s Brief at 3-4. When the omission of MPA 33-80 was brought to plaintiff’s attention, plaintiff’s counsel stated that this claim had recently been converted to a background claim. In contradiction with this statement, Sheppard was later to testify at his sanctions hearing that he assumed it was a background claim all along. 30

Although the Sheppard case proceeded at a slightly faster pace, evidence was not completed until April 18, 1984. Testimony on plaintiff Blue’s claims began on April 19, 1984. In the interim, on April 17, 1984, defendant filed his first motion for sanctions alleging abuse of judicial process by the bad-faith abandonment, without notice, of final pre-trial claims for relief in the cases of Mattiebelle Harris, 31 Sheppard, and Blue (as proposed in Blue’s pre-trial brief of April 3, 1984). 32 As defendant stated at the time:

Plaintiffs made broad allegations of racial discrimination in their initial complaint, subsequent multiple answers to defendant’s interrogatories, and several pre-trial orders. In these documents plaintiffs expanded and amplified upon their allegations and cited specific merit promotion announcements and issues which they asserted they would litigate. Plaintiffs in effect placed defendant on notice that almost every personnel action involving plaintiffs and/or intervenors would be litigated. Defendant was therefore, forced to be prepared to rebut such issues_ As can be seen, however, such allegations [with many now abandoned] were a mere smoke screen to divert the time, energies and money of the defendant away from what would turn out to be the actual issues....

Defendant bilieve [sic] that the sudden dropping of these claims damaged them_because plaintiffs either deliberately or carelessly made grandiose alle *1233 gations without any evidentiary support. This method of recklessly making charges [ ] distracted defendant from refining their defenses on the real causes of action that plaintiffs intended to pursue. .

Plaintiffs contended that they dropped these claims pursuant to the court’s desire to speed up the litigation.

Such an excuse cannot be credited when closely scrutinized. Either plaintiffs believed these claims were meritorious to begin with, in which case it is difficult to believe that they would spontaneously drop them now solely to shorten trial time or they were deliberately inserted with the intent to mislead the defendant. ...

It is inconceivable that the plaintiffs maintained a good faith belief that they had been discriminated against in these claims but dropped them merely to shorten the proceedings....

Obviously what occurred in reality was that these were dubious claims to begin with and that they were dropped when the court required plaintiffs to further specify the facts in each and every case.... [Thus], the most baseless of these claims were quickly abandoned.

Defendant’s Memorandum of April 17, 1984, at 2-6. Unfortunately, as this opinion will later find, the court is forced to agree with much of what defendant wrote in April of 1984.

Defendant’s motion for sanctions was taken under advisement and a briefing schedule established. Shortly thereafter (April 25), trial of the Blue claims was recessed until August due to the press of other litigation and certain unavoidable and exigent personal matters. 33

On May 7, 1984, plaintiffs Jeanne Hen-don, James Fleming and Beulah Mae Harris moved for voluntary dismissal of all their claims, pursuant to Fed.R.Civ.Proc. 41(a)(2). 34 Plaintiffs contended that, although their claims were meritorious, various legitimate reasons now necessitated their withdrawal from the lawsuit. Hen-don asserted time, expense and health reasons. Fleming argued that he was financially unable to pursue the litigation any further and, in any event, his most important claims had been dismissed by the court in its December 8, 1983, Order. 35 Harris alleged that she was harassed and retaliated against due to her participation in this lawsuit and that she would pursue her continuing claims in this regard in another forum. See Findings and Conclusions infra at §§ VI and VII.

Defendant responded to plaintiff’s motion, arguing that plaintiffs’ claims were frivolous and pursued in bad faith. Although defendant did not oppose dismissal of the claims, defendant moved for sanctions and an award of fees and costs. On June 6, 1984, the court granted plaintiffs’ motion with prejudice, but expressly conditioned the dismissal by reserving its right to render a decision on defendant’s motion for sanctions and enter judgment against plaintiffs at that time. 36

*1234 Motions similar to that filed by Hendon, Fleming and Harris were subsequently filed by Violet Henderson and Leonetta Bibby on July 26, 1984, Alicia Chisholm on July 30,1984, and Carlton Giles, King Cameron, Viola McLean, Manuel Early, Jessie Williams, Nancy Alexander, and Joyce Malone on September 14, 1984. Reasons for the proposed dismissals varied with each plaintiff: some personal, some financial, some ambiguous. It would serve no useful purpose to recite them all here. Defendant filed a similar response in each case and the court issued orders identical to that filed on June 6, 1984. Sanctions hearings were eventually held in 1985 with regard to these motions to dismiss, and all of these disputes, except with respect to Blue and Beulah Mae Harris, eventually settled in July of 1985. 37

Deeply concerned about the four month delay in proceeding with the trial of Blue’s claims, the court, in an effort to effectively utilize at least a portion of this time, referred all of the collateral settlement issues which remained open after the court’s December, 1983, order to United States Magistrate Wallace Dixon for hearing as a master pursuant to Fed.R.Civ.P. 53(b) and 42 U.S.C. § 2000e-5(f)(5). 38 A three day evi-dentiary hearing was subsequently held by the Magistrate in Fayetteville on the claims of plaintiffs Robert Evans and Mitchell McKeller. 39 On August 1,1984, the Magistrate issued his report concluding that neither plaintiff was barred from asserting any claim for relief as the disputed claims were never legally resolved by means of the administrative complaint process. After objections were filed by the defendant, the court indicated orally that with some modification in the Magistrate’s findings of fact, the court adopted the report’s extensive conclusions of law in toto. 40

One other incident of significance needs to be mentioned prior to a return to the trial of Blue’s claims in August of 1984. James Canady, a witness for the plaintiffs, filed an informal EEO complaint alleging that defense counsel retaliated against him because of his testimony in this case and intimidated him during a public speech at an Army EEO seminar in May of 1984. Defense counsel emphatically denied the charge and requested an immediate eviden-tiary hearing, which the court held on June 8, 1984, in Raleigh. As a result of this hearing, the court found that defense counsel’s comments at the seminar, concerning the history of this litigation and plaintiffs’ view of the effect of AAP's, were not intended nor could they reasonably be perceived as direct or indirect threats or attempts to intimidate Canady. Indeed, Ca-nady stated at the hearing that he did not feel intimidated with regard to any future testimony. Accordingly, the court found no misconduct on counsel’s part and no threat to the integrity of the litigation. See Order of July 27, 1984.

On August 27, 1984, the trial resumed in Wilmington. As befits this case, testimony was soon thereafter interrupted by Hurricane Diana, which hit Wilmington in early September of 1984 not once, but twice. Thankfully, all participants to the litigation survived the lady’s double onslaught and testimony in Blue’s case was completed on *1235 September 4, 1984. 41 I note that one good thing did come of Diana’s visit(s) to Wilmington and that was the break in trial which allowed the court to re-assess the status of the litigation, then in its ninth week. As furious acts of nature have a way of doing, hurricanes can make a person realize his own mortality. Deciding that it was quite possible I didn’t have enough time remaining in my lifetime to complete this case at the pace then in progress, the court, pursuant to Fed.R. Evid. 611(a), established time limitations for all of the remaining claims, beginning with the next plaintiff, Geraldine Ballew. Each party was allowed a total block of hours for direct and re-direct examination of their witnesses as well as cross and re-cross examination of the opposing party’s witnesses. 42 In Ballew’s case, each side was allotted twenty-three (23) hours and neither party reached their limit. 43 Evidence in the Ballew case was completed on September 14, 1984; testimony on the claims of Robert Evans began on September 17, 1984, and ran through September 21, 1984. Again, due to pending criminal litigation which has priority, trial recessed and was not resumed until February 25, 1985. In the interim, the parties filed proposed findings and conclusions with respect to completed claims, pre-trial materials for upcoming cases, and cross-motions for sanctions on a series of discovery disputes. From the events that occurred in early March of 1985, it is also apparent that counsel engaged in extensive settlement negotiations over this break, as the court had long been urging.

Trial again resumed on February 25, 1985, and quickly thereafter both the claims of Robert Evans and Mitchell McKeller were completed. As the court was preparing to hear the next series of claims, those of plaintiff Edward Humphrey, counsel informed the court that a partial settlement of this action had been reached. 44 Although the terms of the agreement took a few days to iron out, an “Agreement” was signed and filed on March 4, 1985. The terms of the accord were as follows:

(1) The defendant agreed to continue to implement its AAP and FEORP in good faith, attempting to achieve the goals and time-tables specified therein. Plaintiffs conceded, however, that both plans were based on an undifferentiated labor market *1236 and, thus, if the goals of the plans were not met as scheduled, plaintiffs agreed not to bring a proceeding against the defendant alleging that defendant’s failure violated the agreement;

(2) All of the plaintiffs with cases remaining to be decided, except Mattiebelle Harris, Sheppard, Blue, Ballew and Evans, agreed to dismiss their claims with prejudice, as well as any pending EEO or other administrative charge or grievance which formed the predicate of the claims at bar or which were raised subsequent to June 30, 1983. In return, defendant agreed to pay the sum of $75,000.00 to the plaintiffs as a group, with certain discovery expenses incurred by the defendant set-off from that figure;

(3) Those claims heard by the court— Harris, Sheppard, Blue, Ballew and Evans —were to be adjudicated by the court, with both parties waiving any right to appteal said ruling. In addition, plaintiffs agreed not to pursue any claim for class relief or seek reconsideration of the denial of class certification;

(4) All pending motions for sanctions, filed by either party, were to be decided by the court with both sides reserving the right to appeal any decision rendered thereto; and

(5) Defendant agreed to waive any claims to costs, expenses or fees in the Ballew case. Plaintiffs agreed to the same in all cases, except those of Harris, Sheppard, Blue and Evans.

Upon filing of the “Agreement,” trial was recessed until March 11, 1985, to allow the parties to prepare for the sanctions hearings to follow. The sanctions hearings were divided and sub-divided in the following manner. First, the court entertained testimony and argument with respect to a series of cross-motions regarding alleged discovery and procedural abuses not directly linked to any individual claim. Second, defendant’s motion for sanctions, fees and costs with respect to each of the individual plaintiffs was heard in a bifurcated setting, with evidence as to “liability” in each case coming initially and evidence as to “damages,” i.e., requested fees and costs, being heard last. 45 In addition, at the liability stage of the proceeding, the court specifically directed that two questions be addressed: (1) whether the claim(s) at issue were frivolous, meritless or vexatious under Christiansburg Garment Co. v. EEOC, 434 U.S. 412, 421, 98 S.Ct. 694, 700, 54 L.Ed.2d 648 (1978) and 28 U.S.C. § 1927; and (2) whether any claims for relief designated as such in the final pre-trial order were abandoned after the start of trial and, if so, whether the abandonment occurred for a legitimate and good-faith reason. See Order of May 29, 1985. Defendant’s request for costs, expenses and fees against the individual plaintiffs exceeded $220,-000.00.

After expeditiously resolving most of the discovery disputes between the parties, evidence on the defendant’s motions against the individual plaintiffs began on March 11, 1985. Trial on the liability aspect of the defendant’s motions took place on March 11-15, March 26-29, and April 8-10, 1985. 46 Upon completion of the evidence, court was recessed to allow briefing by the parties, a decision by the court on the liability issues, and preparation for any required hearing on damages.

During April, May and early June, the parties filed extensive proposed findings of fact and conclusions of law. Upon review of those materials, the court’s trial notes, and significant portions of the record, the court informed counsel that it would find in favor of plaintiffs Mattiebelle Harris and Leonetta Bibby and, therefore, testimony as to damages in those cases was rendered moot. As for the remaining plaintiffs, the *1237 court indicated to counsel that it was seriously considering imposing at least partial sanctions on a number of claims against those individuals and, potentially, against counsel. Accordingly, defendant was ordered to file a fee and cost application with the court by claim, indicating a breakdown of the reasonable hours expended by counsel and their litigation staff, as well as counsel’s hourly rate requested. Order of June 6, 1985, citing Blum v. Stenson, 465 U.S. 886, 104 S.Ct. 1541, 79 L.Ed.2d 891 (1984); Hensley v. Eckerhart, 461 U.S. 424, 103 S.Ct. 1933, 76 L.Ed.2d 40 (1983); National Association of Concerned Veterans v. Secretary of Defense, 675 F.2d 1319 (D.C.Cir.1982); and Copeland v. Marshall, 641 F.2d 880 (D.C.Cir.1980) (en banc ). 47 Plaintiffs were ordered to present any evidence contesting the reasonableness of the hours claimed or rate requested at the July 8 session of court. See Order of July 5, 1985. Plaintiffs were also ordered to present any evidence at that time indicating a financial inability to pay the requested amount. Id.

Prior to the start of the July 8 hearings, one of the plaintiffs, Alicia Chisholm, who had retained independent counsel, reached an agreement with the defendant resolving defendant’s motion for sanctions against her. This agreement was approved by the court on July 3, 1985.

Hearings on the issue of damages were held for eight (8) days, commencing July 10, 1985. During this process, the parties were simultaneously conducting late night negotiations aimed at resolving the entire dispute. These negotiations reached fruition on July 31,1985, with the filing of the “Final Agreement,” previously mentioned in this opinion, disposing of all substantive claims, save those of Sandra Blue, and all sanctions motions, save those of Blue and Beulah Mae Harris. 48

Specifically, the Agreement dismissed with prejudice all individual and class claims of race discrimination and retaliation against the defendant, except Blue’s, which arose from plaintiffs’ employment at Ft. Bragg up to June 30, 1983, “known or unknown,” “matured or unmatured,” that were raised or could have been raised in this lawsuit under Title VII. Further, all EEO and administrative charges and grievances forming the basis of any claim at bar or raised between June 30,1983, and March 4, 1985, were dismissed. All motions for sanctions, fees, and costs were dismissed, except those against Blue and Harris. This Agreement superceded the March 4, 1985, settlement and constituted a “full and complete resolution of all matters alleged in this litigation,” except for the claims heretofore mentioned. See also Orders of August 6 and 7, 1985. By order of August 6, 1985, the court interpreted the Agreement as a stipulation of dismissal with prejudice under Fed.R.Civ.P. 41(a)(1)(h), thus, rendering the document immediately effective and obviating the need for judicial approval. McCall-Bey v. Franzen, 777 F.2d 1178, 1184-85 (7th Cir.1985); American Cyanamid Co. v. McGhee, 317 F.2d 295, 297 (5th Cir.1963); Wright and Miller, Federal Practice & Procedure: Civil § 2363 (1971).

Following filing of the “Final Agreement,” both sides submitted numerous briefs, affidavits and materials on the remaining claims and motions at issue. Evidence was deemed closed as of August 23, 1985, and final pleadings were filed by November 5, 1985.

Accordingly, the court will now consider seriatim the substantive claims of plaintiff Sandra Blue and defendant’s motion for sanctions against plaintiffs Blue and Beulah Mae Harris. The credible evidence adduced at trial in this case supports the following.

III. FINDINGS OF FACT AS TO DEFENDANT’S PERSONNEL POLI *1238 CIES AND METHODOLOGY OP PROMOTION 49

Both sides introduced extensive evidence as to the organization and promotion processes utilized at Ft. Bragg. Because knowledge of the institutional structure and the merit promotion system is vital to an informed evaluation of plaintiffs’ claims and defendant’s motion for sanctions, the court includes the following findings.

A. Ft. Bragg’s Civilian Personnel System 50

1. The Ft. Bragg Civilian Personnel Office (CPO) has authority and direction over employment practices at the installation subject to regulations and directives from the Office of Personnel Management (OPM) and Department of Defense (DOD). CPO is under the supervision of the Civilian Personnel Officer, a position held since January 27, 1980, by Jerry W. Horne, a white male. Horne, as well as a number of members of his staff, testified at length during various claims in this trial. Horne appeared to the court to be a dedicated professional and a competent manager, surrounded by an excellent, hard-working staff. The court was impressed by the CPO staff’s careful explanations of the personnel and promotion processes at Ft. Bragg and their sincere demeanor. Accordingly, the court credits the testimony of Jerry Horne and his staff with the following findings predicated, in large part, upon their testimony. E.g., Testimony of Ronald Woodard, Kathryn Hamilton, Jean Byrd, Laura Howard, and John Parham. 51

2. CPO’s authority includes:

(a) the administration of all legal, regulatory and procedural controls, established within the federal personnel system, effecting apportionment, assignment and separation of civilian employees at the installation;

(b) the assignment of positions to appropriate grades;

(c) approval of training requests for civilian employees in non-governmental facilities;

(d) serving as the principal contact point for conducting business with the civilian labor union on base; and

(e) providing personnel management advice and assistance to senior staff and line managers in areas such as: (1) management-employee relations; (2) leave administration; (3) employee discipline; (4) the merit promotion selection process; and (5) administration of negotiated labor contracts.

3. CPO consists of a Technical Services Office and four functional divisions: Recruitment and Placement, Management-Employee relations, Position Management and Classification, and Training and Development.

4. The Technical Services Office analyzes directives by the command structure and outside federal agencies; provides expert assistance in the implementation of regulatory requirements affecting civilian personnel administration; coordinates internal audits of personnel actions and civilian personnel records; processes personnel actions; develops systems for data collection; and maintains official personnel folders (OPF’s) for all civilian employees. 52

5. The Recruitment and Placement Division analyzes civilian personnel staffing requirements and determines sources of potential employees to meet staffing needs; administers all in-service placement; provides assistance to managers in meeting staffing needs; and advises employees regarding opportunities for advancement, development and relocation.

6. The Management-Employee Relations Division assists management in its day-to-day relations with employees and the employee labor union. The Division is *1239 responsible for dealing with adverse personnel actions, developing policies on grievances and appeals by employees, enhancing employee-management communications, and advising managers and supervisors on their responsibilities for counselling and evaluating employees.

7. The Position Management and Classification Division advises management on the establishment and maintenance of Ft. Bragg’s position structure. The Division classifies and evaluates all civilian positions and determines the structure’s effectiveness in light of the installation’s changing physical, manpower, and fiscal needs.

8. The Training and Development Division provides technical advice and assistance to all levels of management concerning the determination of training needs, sources of training, presentation of training programs, and evaluation of results.

9. In addition, CPO, in accordance with DOD and OPM regulations, conducts a continuing recruitment program for minorities and women designed to eliminate their “under-representation” in various categories of employment in the civilian work force at the installation. It is clear from the record that Ft. Bragg has long made a significant commitment in the area of equal employment opportunity. In addition to having a formalized AAP and FEORP, Ft. Bragg has developed a number of credible and seemingly effective individual programs to assist minorities.

(a)The Worker Trainee Program is used to employ individuals at levels lower than trainee levels. In this program, individuals are usually recruited from outside the normal recruiting process. It is specifically designed to assist those individuals with no skills and enhances affirmative action goals by providing increased opportunities for the employment of underrepresented groups;

(b) The Career Intern Program allocates positions to train individuals in certain career fields, particularly career management occupations, which tend to lead to higher level positions within the Department of the Army. The entry level of these positions is usually GS-5 with a target level of GS-9;

(c) The Student Employment Program is a series of programs designed to meet affirmative action goals by acquainting temporary employees with permanent employment opportunities; 53 and

(d) The Upward Mobility Program is an integral part of Ft. Bragg’s AAP and provides accelerated developmental opportunities to lower level employees. Since one of the major impediments to promotions is that the experiences gained in low grade positions fail to meet the entrance requirements for positions with career potential, the Upward Mobility Program provides for selection criteria in a number of designated vacancies, to be expressed in terms of employee interest in a career field, likelihood of success in an intensive training setting, and sufficient potential to learn the duties of the target job.

10. Defendant’s FEORP, (PX13) consists of external and internal recruiting and staffing strategies designed to accomplish affirmative action goals. A key element of the FEORP is the assessment of “under-representation” which serves to trigger targeted recruiting efforts. “Underrepre-sentation” is defined as the disparity between the participation rate of a racial group by sex in the appropriate civilian labor force and its participation in the agency work force. See EEOC Management Directive (MD) 707. For the relevant multi-year FEORP, generalized civilian labor force (CLF) statistics were used to compute underrepresentation. 54 As EEOC MD 707 states, “under law, FEORP determinations of underrepresentation are based *1240 on undifferentiated CLF data.” (emphasis added). 55

Thus, “underrepresentation” determinations in the FEORP (and AAP), based on CLF data, are made without regard to the availabilities of minorities and women in the labor force identified as having (or potentially having) the skills needed to perform in various occupations and grade levels. In other words, the FEORP simply compares black representation in virtually all job groups to the percentage of the black population in the North Carolina workforce. Accordingly, for many jobs that require skills held statistically less often by blacks, there will appear to be FEORP underrepresentation, when, in fact, the utilization of blacks at Ft. Bragg may be at parity, or above, compared to the qualified (and relevant) labor markets. Given this use of statistics, no valid conclusion of underrepresentation for Title VII purposes can be made simply by referring to either the AAP or the FEORP. 56

B. The Merit Promotion Process at Ft. Bragg 57

11. There are essentially two types of promotion at Ft. Bragg: competitive and non-competitive. Promotions at Ft. Bragg are generally awarded in accordance with the base Merit Promotion Plan; however, there are instances in which positions must be filled by other non-competitive methods. The following placement actions are excluded from the competitive merit promotion procedures by OPM and DOD directives and are considered mandatory in that when a vacancy arises for which a registrant in any of the programs listed below is qualified and available, that registrant must be offered the position:

(a) placement actions required in connection with a RIF;

(b) placement of individuals having statutory, regulatory, or administrative reemployment or restoration rights, or to whom a like employment obligation exists (e.g., employees returning from overseas assignment);

(c) placement of Priority 1, 2 and 3 employees registered in the DOD Stopper List (e.g., DOD employees separated, or about to be separated or downgraded through no fault of their own);

(d) placement of an individual directed by an appropriate outside authority, provided the placement does not violate law or existing regulation (e.g., placement ordered by OPM, EEOC, or the courts);

(e) promotion to positions upgraded without significant changes in duties and responsibilities on the basis of either a new classification standard or the correction of a classification error.

12. In addition, the following “special consideration” placement actions are likewise exceptions to competitive procedures. Unlike the placement actions listed above, placement in the following categories is not mandatory; however, consideration of employees in the following categories precedes all efforts to fill the vacancy by competitive means:

(a) repromotion of an employee to grade(s) or position(s) from which the employee was demoted without personal cause; 58

*1241 (b) priority consideration of any employee after failure to receive proper consideration; 59

(c) former employees on Reemployment Priority Lists {e.g., former employees separated in a RIF);

(d) medical reassignment eligibles.

13. The decision to utilize a non-competitive method for promotion is made by the supervisor or manager requesting the position and the CPO. This choice of method used to fill the position is not excessively subjective, rather it is based on specific, detailed and mandatory federal personnel and DOD directives. No evidence was adduced to support the plaintiffs’ position that the decision to use one method over another was “often made with the purpose and intent of discriminating against black employees.” Final Pre-Trial Order at 11.

14. The present merit promotion procedures became effective in June of 1982 and are set forth in Ft. Bragg’s Recruitment and Placement Plan. Prior to that time, the procedures were slightly different and were set forth in the Civilian Personnel Policy and Procedures Manual, Chapter III — Merit Promotion and Internal Placement Plan. The following discussion focuses first on the merit promotion process prior to 1982, since most of Blue’s and Harris’ claims of discrimination fall within that time frame. The June, 1982, changes will then be briefly examined in order to complete the overview of the Ft. Bragg promotion process.

15. To initiate a competitive promotion, a supervisor or manager requests that a vacant position be filled by forwarding to CPO a general position description on a Standard Form (SF)-52. The SF-52 is then routed through the appropriate manpower and budget office for a determination that the position is authorized and funded. Subsequently, the request is sent to CPO’s Position Management and Classification Division, where a classification specialist reviews the initial job description to ensure that it accurately describes the .job, that job is properly classified under OPM regulations, and that it is assigned the proper federal personnel grade. As a final preliminary step, the request goes to the Recruitment and Placement Division of CPO, where it is assigned to a staffing specialist servicing the organization from which the request originated. Assuming that all noncompetitive mandatory and non-mandatory priority placements have been cleared, the merit promotion process begins.

16. There are three (3) principal tasks involved in the merit promotion process: job analysis and preparation of a job announcement, evaluation of applications, and selection.

17. A CPO staffing specialist writes a vacancy announcement by first referring to the position description and setting forth the “minimum qualification standards” for that position as established by OPM Handbooks X-118 and X-118-C. Minimum OPM qualification standards are used to determine basic eligibility for a position. Every candidate who meets or exceeds the minimum requirements is deemed “eligible” for the position; any candidate who does not meet these standards is deemed ineligible for further consideration. In some instances, a particular job or job environment necessitates an additional basic or minimum qualification requirement that must be met if minimum satisfactory performance is to result, e.g., fluency in a foreign language or willingness to travel. These additional basic requirements are called “selective placement factors.”

18. The next step for the staffing specialist involves discussions with subject matter experts (generally the manager or supervisor requesting the position) in order to develop a series of “High Qualifying Criteria” (HQC) for the position. Prior to 1982, OPM regulations required that evalu *1242 ation methods be designed to identify “highly qualified” and “best qualified” eli-gibles. The Merit Promotion and Internal Placement Plan of the Civilian Personnel Policy and Procedures Manual defined “highly qualified” candidates as “those eligible candidates whose experience, training and potential substantially exceed the qualification standards for the position ... to a degree that indicates they are likely to perform in a superior manner.” Thus, the HQC for a position amounted to the four or five principal and specific requirements for the position. Prior to the release of any job announcement, all HQC were independently reviewed by CPO to determine that they were job-related.

19. Upon the development of all of the above information, the job opening is posted in a document entitled “Merit Promotion Vacancy Announcement,” which is distributed in all areas open to consideration, e.g., post-wide, DOD-wide, etc. Information contained in Merit Promotion Vacancy announcements includes, inter alia, the job title, location, announcement number (MPA #), area of consideration, closing date for applications, job description, minimum standards of eligibility, including all general and specialized experience required, HQC, and the methods of evaluation that will be utilized to review all applications. See, e.g., DX205 and 210. Again, contrary to plaintiffs’ pre-trial argument, no evidence was introduced establishing even one incident of discriminatory failure to post a vacancy announcement.

20. Generally, prior to June of 1982, a person applied for a vacancy by filling out a one-page, pre-printed form with blocks for basic information such as name, social security number and MPA number. See, e.g., DX305 at 15 and 19. In addition, although it remains unclear to the court whether this was required, most applicants attached a qualifications statement (SF-171) to their application or, where appropriate, updated their existing SF-171 in their OPF.

21. After consideration for the vacancy closes, all applications are reviewed by the assigned CPO staffing specialist to determine whether the applicant meets the minimum eligibility requirements for the position. As previously stated, all those applicants who are determined to be qualified are designated as “eligible.” There is no limit on the number of applicants who may be so designated. If an applicant is deemed “not qualified” or “ineligible,” s/he is so informed. Id. at 10-11.

22. The personnel staffing specialist’s job of determining an applicant’s basic eligibility is not merely mechanical. The determination involves judgment and discretion as to whether the applicant’s qualifications are comparable or equal to the basic qualifications. The matching-up of what is an applicant’s SF-171 with the general X-118 and 118-C requirements obviously involves the exercise of some professional judgment. Nonetheless, this process is similar to that used at most federal agencies and the court finds no evidence that staffing specialists abused their discretion in performing this responsibility nor has there been any credible showing of discriminatory evaluation by CPO in this regard.

23. All applicants determined to be eligible by the staffing specialist are referred to a rating and ranking panel which, prior to June of 1982, rated applicants as Qualified, Highly Qualified and Best Qualified, ranked the applicants and determined which applicants to refer to the selecting official. 60 These panels are made up of subject-matter experts in the functional area of the job vacancy. Panel members are required to have personal knowledge of the job requirements, and must be employed at a grade level equal to or higher than the job being filled. Assisting the rating and ranking panel in performing its job is a CPO staffing specialist. 61

*1243 24. Prior to June of 1982, the rating and ranking panel basically performed three (3) tasks. First, the panel reviewed each applicant’s OPF to determine whether the applicant met the HQC. If an applicant failed to meet any HQC, that information was noted on the panel’s rating sheet and no further consideration was given to that applicant. 62

25. All applicants meeting the HQC and, thus, determined to be “highly qualified,” were then rated and ranked by the panel in the following manner. Applicants were ranked based on evidence in their OPF of:

(a) experience

(b) supervisory appraisals

(c) education and training; and

(d) awards.

However, these factors were not all equally weighted. Weights were assigned to each criterion, points given to each candidate for each criterion, and results combined to determine a final numerical rating for each applicant.

The weighting process was predicated on a crediting plan developed for each vacancy by the CPO staffing specialist, in conjunction with subject matter experts, prior to the time the panel convened. The crediting plan is the yardstick the panel used in order to determine the points that would be given to each candidate for each criterion. For example, three levels of quality were usually identified for each item of specialized experience and points were assigned under the “experience” factor based on the number of years experience that was required and the quality level the applicant was determined by the panel to possess. Additional points in that category would then be added for each year of experience above the minimum that the applicant possessed. 63

26. Once each “highly qualified” candidate received a rating, the scores were then placed in numerical order, ranking the applicants high to low. However, not every candidate on this list was subsequently referred to the selecting official. Two rules in effect until 1982 specifically limited the number of referees.

First, 1975 OPM regulations (FPM 335.3-7) allowed only for the referral of three (3) to five (5) “best qualified” candidates and up to a maximum of ten (10) if meaningful distinctions between the candidates’ scores could not be made. In addition, consistent with OPM guidelines, the negotiated Contract Agreement between management and labor at Ft. Bragg, in effect from August, 1974, to May, 1978, limited the “best qualified” list to five (5) candidates for a single vacancy and allowed the addition of only one (1) name to the best qualified list for each additional vacancy. PX33(b) at 31. When the labor contract was re-negotiated in 1978, the new 1978-1982 Agreement eliminated the Rule of Five and replaced it with a Rule of Ten — only the top ten (10) candidates could be referred for any single vacancy. 64 PX33(b) at 39.

The second rule limiting the number of referees also stemmed from the 1978 Contract Agreement, which mandated that the “best qualified” list include only those candidates who received 85% of the score of the top qualified candidate. Id. Plaintiffs contend that both the Rule of Ten and the 85% Rule were applied in a discriminatory manner and effected an adverse impact on black applicants. Evidence on this issue was taken in the cases of both Blue and Ballew and the court’s findings and conclusions appear infra.

27. Once the ranking was completed, the CPO staffing specialist prepared a form entitled “Referral and Selection Register” (DA Form 2600) listing the names of *1244 those found “best qualified” alphabetically. Neither the scores given to the candidates nor their race were placed on the DA Form 2600, which was then given to the selecting official. 65 See, e.g., DX205 at 103.

28. Upon receipt of the Referral and Selection Register, the selecting official may select any of the persons listed on the Register. From 1974 to 1978, the selecting official was required to interview all referred candidates, if available, unless a statement of personal knowledge of qualifications of each referred candidate was submitted by the selecting official. The 1978 Contract Agreement required the selecting official interview all referred candidates, if available, but eliminated the personal knowledge statement previously allowed. PX33(b) at 39.

29. Prior to 1982, the selecting official received guidance from CPO in interviewing techniques, if requested, and was always strongly encouraged to (1) review the OPF’s of the referees, (2) conduct a structured interview of the referees and (3) consider affirmative action objectives. The 1978 Contract Agreement required that the selecting official state his or her reasons for selection on the DA Form 2600 which was returned to CPO post-selection. Id. Thus, after completion by the selecting official, all Selection Registers included the name of the selectee, the merit factors considered by the selecting official in making his/her selection, the reasons for the selection, whether each candidate was interviewed, and the date of selection. See, e.g., DX205 at 103. Plaintiffs contend that the selecting official was vested with too much discretion under the pre-1982 system and that the standards for selection were vague and excessively subjective. See Final Pre-Trial Order at 16. The court’s findings on this issue are set forth later in this opinion.

30. As a result of the adoption of the 1982 Recruitment and Placement Plan and re-negotiation of the Labor Contract Agree- merit, the following changes occurred in the merit promotion process at Ft. Bragg:

(a) The “highly qualified” category of eligibility was eliminated. In preparing the Vacancy Announcement, instead of developing HQC, the staffing specialist now identifies the four or five major functions to be performed on the job and, further, identifies the “knowledge, skills, and abilities” (KSA’s) required to perform those functions. The post-1982 Vacancy Announcements thus contain the OPM minimum eligibility requirements, in terms of general and specialized experience, and a list of the KSA’s necessary for the job. See, e.g., DX230 at 6.

(b) In applying for the merit promotion vacancy, all applicants must fill out a basic application form together with supplemental experience sheets on which the applicant must demonstrate how s/he possesses the KSA’s for the job. Id. at 17-25.

(c) Basic eligibility is still determined by the staffing specialist, but the rating and ranking panel now determines the “best qualified” candidates by use of a crediting plan developed for each vacancy which evaluates the candidate’s possession of the required KSA’s and other characteristics, as evidenced by the rating elements, e.g., training, awards, etc. This rating process scores each applicant on a matrix, assigning to each KSA a point value between one (1) and four (4), representing the degree to which the KSA is possessed. Id. at 26.

(d) The “best qualified” applicants’ names are then placed on the DA Form 2600 in alphabetical order, as before, without scores or any race identifier. Furthermore, the 1982 Plan eliminated the 85% Rule and placed no limit on the minimum or maximum number of candidates referred to a selecting official. The number referred is determined by the rating panel and staffing specialist who consider the scores of the candidates and the breakpoints or gaps between the scores.

*1245 (e) Accompanying the DA Form 2600 when given to the selecting official is a Disposition Form from CPO which clearly indicates, inter alia, that for the selection, the selecting official should (1) review the OPF’s of all referees, (2) conduct a structured interview for each referee, (3) articulate the specific reasons for his selection, and (4) consider all affirmative action obligations. The selecting official then makes his/her selection from among the “best qualified” list based on the requirements of the position, impression of the applicants during interview, and other job-related factors, including “underrepresentation” considerations as expressed in the AAP and FEORP.

Plaintiffs contend that even after the 1982 changes, defendant’s merit promotion plan remained “vague, subjective and susceptible of discriminatory manipulation” in virtually every phase of the process. Final Pre-Trial Order at 16-18. Because all of Blue’s substantive claims and most of Harris’ claims arise under the pre-June, 1982 process, the court need not and will not make any findings in this regard, except as are narrowly required to deal with defendant’s motion for sanctions against Blue and Harris for their post-June, 1982, claims.

31. Training, awards, and supervisory appraisals play a part in the merit promotion process as previously described, whether as a factor in the auditing plan utilized by a rating panel to determine the “best qualified” candidates or, post-June, 1982, as part of the determination of the level of each KSA reached by the applicant. However, the court notes that training, awards and supervisory appraisals play a minor role in the promotion process compared to job related experience and do not come into play at all until the applicant has met the minimum OPM eligibility requirements.

32. As for training, defendant's policy is to provide all training required, within physical and fiscal constraints, to assure maximum efficiency of civilian employees in the performance of their officially assigned duties and to encourage employees in their efforts for self-improvement. Training requests are initiated by supervisors and forwarded to CPO, which conducts a review of the employee’s eligibility for training. Evidence at trial indicated the denial of training opportunities to certain plaintiffs, e.g., Mattiebelle Harris, but said denials were invariably grounded upon legitimate fiscal or regulatory reasons. No credible evidence was adduced by plaintiffs creating even an inference of discrimination in their respective denial of training claims.

33. There are two types of incentive awards at Ft. Bragg — honorary and cash awards. The Awards Program provides a means of demonstrating the high value the supervisor places on superior performance, exceptional achievement, and constructive ideas. Honorary awards include DOD, Department of the Army and Presidential awards. Cash awards include Sustained Superior Performance Awards (SSPA’s) and Quality Step Increases (QSI’s). The SSPÁ is awarded to GS and WG employees for individual performance for a period of at least twelve (12) months given in recognition of high-level performance significantly above that ordinarily found by employees in that position. QSI’s are recognition for GS employees whose performance is of such a high quality above that ordinarily found in the type position concerned that special salary recognition is warranted. An employee may receive only one (1) cash award within any given thirty-six (36) month period. The award process is initiated by the employee’s supervisor. The court received no credible evidence supporting plaintiffs’ pre-trial contention that supervisors engaged in “racially motivated denials of awards.” Final Pre-Trial Order at 18.

34. Like incentive awards, there are two types of appraisals given to civilian employees at Ft. Bragg: (1) annual performance appraisals and (2) supervisory appraisals of current performance. The annual performance appraisal is what it purports to be — an annual evaluation of performance, written by the employee’s first-line supervisor, and reviewed by the second-line supervisor, that becomes a permanent part of the employee’s OPF. Prior to *1246 1982, only three (3) ratings were possible. Outstanding, Satisfactory and Unsatisfactory. See, e.g., DX201 at 141. The new system, General Performance Appraisal System (GPAS), contains five (5) possible ratings: Exceptional, Highly Successful, Fully Successful, Marginal and Unsatisfactory. Each rating is tied to accomplishment of job standards and performance in a number of job elements. Id. at 122-25.

A supervisory appraisal of current performance is a rating rendered in connection with an employee’s promotion application and is placed in an employee’s OPF for one year. The form consists of two (2) parts. Part I is a listing of twenty (20) “attributes,” e.g., “takes initiative,” “works well under pressure,” etc. A grade of A, B, C, D or E (“A” being the highest) is then assigned for the employee’s performance of each attribute or, if the attribute is not required in the job, an “N” is assigned. Part II of the form is a statement of overall performance. Six (6) options are available to the supervisor; e.g., “[h]as little of what it takes to do an acceptable job” (lowest) and “[t]he very highest level of performance” (highest). Id. at 135-37.

With rare exception, the court received little credible evidence indicating discriminatory use of either appraisal method. Evaluations, in the court’s estimate, tended to be accurate and well supported by the employee’s work record. In some instances, the employee received a very high overall rating but complained that the rating was discriminatory because it did not give her a perfect or maximum score. E.g., claim of Mattiebelle Harris. The court can say with great confidence that none of the plaintiffs appearing before it were deserving of a “perfect” employee performance score. As for Blue’s substantive allegation in this regard, findings of fact are set forth, infra, at pp. 128-33.

35. Plaintiffs also contend that Ft. Bragg’s disciplinary system “puts black employees at the mercy of their individual supervisors and invites discriminatory application.” Final Pre-Trial Order at 20. Disciplinary action is divided into two (2) categories: formal and informal. Informal discipline includes oral reprimands, the most common of the disciplinary actions taken by supervisors at Ft. Bragg, which may be undocumented or documented by a supervisor’s “Memorandum for Record” (MFR), see, e.g., DX267, or an entry on the employee’s “Employee Records Card” (SF-7B or “Seven Card”). See, e.g., DX237. The main purpose of informal discipline is to make certain the employee understands what is required of him or her in an attempt to immediately correct the problem before it worsens, thus, precluding the need for more drastic action at a later time.

Formal disciplinary action consists of written reprimands, see, e.g., DX237, suspensions and removals. A schedule of punishments for certain offenses is outlined in the federal personnel manual.

Disciplinary actions have no effect on an employee’s promotion prospects at any stage of the process shy of the selecting official’s review of the applicant’s OPF. The rating and ranking panel does not consider discipline nor does CPO in screening for minimum eligibility requirements. However, a selecting official clearly has the right to consider any disciplinary action recorded in an applicant's OPF. Notwithstanding that fact, not a single incident of discriminatory discipline was proved at trial by credible evidence. Indeed, in a number of cases, disciplinary actions taken against particular plaintiffs were extremely lenient and fully justified on their face by the employee’s conduct. See, e.g., claims of Sandra Blue, findings, infra, at § IV.

36. As for defendant’s RIF policies and procedures, the court incorporates by reference its description of the process set forth in Harris v. Marsh, 100 F.R.D. at 319. After hearing considerable testimony in this aspect of Ft. Bragg’s personnel policies during the claims of Mattiebelle Harris, the court finds its pre-trial statement of defendant’s methodology remains correct. No substantive claim regarding a discriminatory RIF remains at issue and no evidence was adduced at trial indicating that RIF’s were systematically effected, in practice, in a discriminatory manner. Notwithstanding that general statement, the court *1247 notes that Mattiebelle Harris’ individual RIF claim was a close issue and one in which the plaintiff clearly presented a pri-ma facie case of discriminatory application.

37. With rare exception, the court finds that plaintiffs were not limited intentionally nor affected adversely in their employment opportunities at Ft. Bragg on the basis of race.

IV. FINDINGS OF FACT FOR PLAINTIFF SANDRA BLUE’S CLAIMS OF DISCRIMINATION

The court received evidence in connection with the claims of Sandra Blue on April 19-25 and August 27-September 4, 1984. 66 Based on the credible evidence adduced at trial, the pleadings, briefs and arguments of counsel, the court makes the following findings of fact:

Plaintiffs Complaints of Discrimination

1. Sandra Blue is a black citizen of the United States and now a resident of the state of California. At the time this litigation was instituted, she was a resident of Cumberland County, North Carolina, employed at Ft. Bragg in a civilian capacity.

2. Blue filed an informal complaint of discrimination in December, 1979, an informal complaint of discrimination in April, 1980, and thereafter a formal complaint of discrimination in June, 1980, and July, 1982. Blue’s complaints of discrimination related to an alleged discriminatory denial of promotion, discriminatory supervisory appraisal, and discriminatory discipline and harassment. PX6(a) and 6(b). Plaintiffs Harris and Sheppard filed their formal class charge of discrimination on May 15, 1980. PX1. Accordingly, this proceeding was instituted more than 180 days after plaintiff’s various EEO charges were filed. Plaintiff has exhausted her administrative remedies under Title VII and has timely instituted this proceeding.

3. Plaintiffs’ complaint initiating this action, filed September 1,1981, simply says “Ms. Blue has been limited in employment and promotion opportunities by the defendants (sic) because of her race.” Complaint at 2. The extensive and general violations of law alleged in the complaint to have been committed against all black civilian employees, including Blue, are set forth in this opinion supra at pp. 10-11 and need not be repeated here. It is reasonable to assume that the defendant prepared his defense to meet each of these allegations with respect to Blue.

4. According to the Final Pre-Trial Order, filed December 8,1983, plaintiff specifically contends she was discriminatorily denied the following positions: Dental Assistant, MPA # 285-78; Dental Assistant, MPA #273-79; Dental Assistant, MPA # 274-79; Dental Assistant, MPA # 277-79; Dental Assistant, MPA # 303-79; Dental Assistant, MPA # 440-80; and Dental Assistant, MPA #67-83. In addition, plaintiff claims she was discriminatorily denied equal training and opportunities for details to job-positions which would enhance her ability to promote, discriminatorily disciplined, given discriminatory evaluations of her job performance, and harassed due to her efforts to enforce and exercise her rights under Title VII. Final Pre-Trial Order at 23-24. In sum, the Final Pre-Trial Order lists elev *1248 en (11) particularized claims for relief for Blue.

5. In plaintiffs Pre-Trial Brief, filed with the court on April 3, 1984, plaintiff listed only the following claims for relief:

1. whether Sandra Blue was diserimi-natorily denied promotion to the job position announced under Merit Promotion Announcement No. 273-79 because of her race and color.

2. whether Sandra Blue was discrimi-natorily denied the job position announced under Merit Promotion Announcement No. 303-79 because of her race and color, because of the defendant’s discriminatory use of the “85% Rule” for referral of candidates for promotion which impacted adversely on minority candidates and was not validated, and in retaliation for Blue’s efforts to challenge defendant’s racially discriminatory employment practices. Brief at 3.

Aside from the obvious abandonment of a number of claims for relief set forth in the Final Pre-Trial Order, plaintiff’s PreTrial Brief itself is inconsistent. On page 2 of the same brief, plaintiff states she “is seeking relief” for the additional claims of (1) denial of promotion under MPA 273-79 because of retaliation; (2) denial of promotion under MPA 273-79 because she was adversely affected by the 85% Rule; and (3) denial of promotion under MPA 303-79, in part, because of a discriminatory supervisory appraisal given to plaintiff in retaliation for her prior complaints of racial discrimination. See also Court’s Discussion with Counsel at 244-251; plaintiffs’ November 19, 1984, Proposed Findings of Fact and Conclusions of Law for Sandra Blue at 3-4.

6. From the pre-trial pleadings, trial, and post-trial briefs and argument, the court finds plaintiff’s final claims for relief to be decided in this litigation are:

(a)whether plaintiff was given a discriminatory supervisory appraisal in December, 1979, because of her race (disparate treatment);

(b) whether plaintiff was discriminatorily denied promotion to the job position announced in MPA 273-79 because of her race (disparate treatment);

(c) whether plaintiff was discriminatorily denied promotion to the job position announced in MPA 303-79 because of her race (disparate treatment);

(d) whether plaintiff was discriminatorily denied promotion under MPA 303-79 because of the effect of the “85% Rule” (disparate impact);

(e) whether plaintiff was discriminatorily denied promotion under either MPA 273-79 or 303-79 in retaliation for plaintiff’s efforts to challenge defendant’s alleged discriminatory employment practices; and

(f) whether plaintiff was discriminatorily denied promotion under either MPA 273-79 or 303-79 because of the excessive subjectivity of the defendant’s merit promotion process or a particular component of that process.

Plaintiffs Employment History

7. Plaintiff was employed by defendant from July 30, 1973, through July, 1983. Upon application in July of 1973, Blue received a temporary appointment as a Nursing Assistant, GS-4, at Womack Army Hospital at Ft. Bragg. She was later converted to career status on September 23, 1973.

8. Blue became dissatisfied with the evening hours of her nursing positon at Ft. Bragg and sought to move into the dental field because it offered more regular hours. In July of 1975, plaintiff applied for and was selected as a Dental Assistant, GS-3. Blue had no prior experience or training in the dental field and, thus, accepted the demotion in grade in order to learn the skills of a new career field. 67

*1249 9. On September 19, 1976, Blue was promoted to Dental Assistant, GS-4, under MPA 129-76. From May of 1976 through the end of her employment with the defendant in 1983, plaintiff rotated through the various departments at Dental Clinic # 6 (DC-6) at Ft. Bragg. Blue terminated her service with Ft. Bragg as a Dental Assistant, GS-4, Step 7, having remained in her current grade since her initial promotion in 1976. 68

10. At the time of Blue’s promotion to GS-4 in 1976, there were fifty-two (52) dental assistants at Dental Activities (DENTAC). Sixteen (16), or 31%, were black. The breakdown was as follows: 0 white and 1 black GS-5, 22 white and 11 black GS-4’s, and 14 white and 3 black GS~3’s. When Blue terminated her employment in 1983, 29% of all dental technicians and assistants in DENTAC were black, with the following breakdown: 37 whites and 18 black GS-4’s, 13 white and 3 black GS-5’s, and 18 white and 8 black GS-6’s. 69

11. Prior to plaintiff’s employment with the defendant, Blue worked as an obstetrics (OB) technician at a private hospital (St. Luke’s) in Newberg, New York, after having undergone a one year program of combined work and study. Blue's testimony that she served three (3) years as an OB technician, from 1966 to 1969, (Test, of Blue at 345) was in direct contradiction to a previous qualifications statement she had entered in her OPF, on which she listed only two (2) years experience as an OB Technician. See DX201 at 84. Further, there is some considerable doubt about the type of schooling Blue received in New York, whether the program was accredited, the exact positions plaintiff held at the hospital (see, id., where Blue states she served as a “Nurse’s Assistant” and at 104, “Nurse’s Aide”) and the experience she gained. Blue’s testimony in this regard is, at best, inconclusive.

12. Blue also worked as a laundry worker, WG-2, at West Point Academy from July 6, 1970, through June 14, 1973, and concurrent with her employment at the Academy, as a part-time bar-maid from March, 1971, to September, 1971. Academically, plaintiff has completed the eleventh grade of high school. Incident to her federal employment, Blue has taken a number of training and correspondence courses.

13. At all times during her employment at Ft. Bragg, Blue received “satisfactory” annual performance appraisals until the rating system was changed. 70 In 1982, under the new system, she received a “fully successful” rating. 71 In addition, plaintiff received four (4) official 72 and one (1) unofficial letters of appreciation and commendation for her services between 1976 and early 1979 while employed at DC-6.

Background Evidence and Claims Not Designated for Relief

14. The organizational structure of the dental clinics in DENTAC, and particularly DC-6, is generally undisputed. The Non-Commissioned Officer-In-Charge (NCOIC) of the clinic was plaintiffs "technical" supervisor; i.e., s/he would give assignments, approve leave, maintain time cards, propose discipline, render performance evaluations, etc. In carrying out these duties, the NCOIC routinely consulted with the dentists for whom the dental assistants *1250 and staff actually worked. 73 The clinic Officer-In-Charge (OIC) was responsible for the overall operation of the clinic and was the second-line supervisor of the civilian dental assistants and staff. 74 The OIC set the policies for the clinic and the NCOIC’s job was to ensure the OIC’s directives were carried out. The OIC was also the first-line supervisor of the dentists. The clinic OIC reported to the DENTAC Commander. 75 The commander was in charge of all Dental Activities and, as such, was the third-line supervisor of all civilian employees at each clinic. Generally, the DENTAC Commander, in consultation with appropriate subordinates, made the promotion selections within DENTAC. Finally, with respect to the relationship between the dental assistants and the dentists, contrary to the plaintiff’s testimony, it is clear that the assistants worked for the dentists, not with them as equal participants, providing care for each patient. If a dentist gave an order to an assistant, it was expected to be carried out; unfortunately, plaintiff was very selective in her application of this principle.

15. Blue claims that numerous NCOIC’s, OIC’s and dentists were involved in a “conspiracy” against her during much of her employment at DC-6. She attempted to adduce evidence to support this allegation and stated that such evidence was offered for background purposes to demonstrate the discriminatory animus of a number of her superiors. Included within this conspiracy and named as alleged discriminatory officials (ADO’s) were SGT. Wayne Jones (black), SGT. Tuanquin, COL. Pa-quette, MJR. Sykes (black), SGT. Matlock (black), LTC. Cressler, 76 Joseph Vincent, CPT. Richard Howell, Dr. Joseph Harmon, Jean Byrd of CPO and “DENTAC Management.” See, e.g., Test, of Blue at 87, 102, 104, 118, and 138-40. In addition, where testimony of witnesses conflicted with Blue’s, she simply claimed these witnesses were lying, either to support the conspiracy or for other discriminatory or personal reasons. Included within this category were, inter alia, SGT. Jones, MJR. Sykes, SSG Ramos, CPT. Howell, Dr. Harmon and Anita Hutchins. See, e.g., Test, of Blue at Vol. VII, pp. 84-89, 100-01.

Contrary to plaintiff’s assertion, the court finds the record is void of any credible evidence supporting the existence of a conspiracy against the plaintiff. Far from being the best dental assistant in DC-6, as plaintiff claimed, nearly all of plaintiff’s peers and supervisors painted a similar portrait of her, generally describing Blue as unprofessional, discourteous, confrontative, borderline insubordinate, average in her skills, and as an employee who had the ability to do a much better job if she had ever cared to do so. See Findings of Fact 30-48 infra. Detailed evidence to support each of these characterizations was presented at trial. Id. Blue was, as defense counsel stated in his opening argument, (Loewenberg at 603), a “problem child” that management constantly had to deal with in a careful, by-the-rules manner. Plaintiff may indeed have been discriminated against by her peers and superiors, but it was due to her own personality, her conduct, her attitude and her performance —not because she was black.

16. Blue claimed that she first encountered racial problems in 1978 with LTC Cressler (white) OIC, and his NCOIC, SGT Ramos (Hispanic). Specifically, she testified that Cressler once said, after hearing that plaintiff had complained to the labor union about an annual performance ap *1251 praisal, that he “would crucify anyone that ever went to the Union or EEO.”

In the only substantial finding of fact the court will make in favor of the plaintiff on a background claim or claim for relief, the court finds the above statement was uttered in part by Cressler. 77 The court finds Cressler stated he “would crucify anyone that ever went to the union.” For this statement, Cressler should have been reprimanded and was not.

Notwithstanding that finding, however, the statement by Cressler clearly had no effect upon any action by the plaintiff, upon any promotion attempt by the plaintiff, and there is not a shread of evidence to suggest the statement was racially motivated.

Both Blue and her co-plaintiff and witness, Geraldine Ballew, admitted, when confronted with their own affidavits, that neither had previously alleged that Cres-sler had ever mentioned the “EEO” in his statement. See PX365(d) at 3-5. 78 This exaggeration by both witnesses at trial seriously undercuts their credibility with regard to the incident in general and certainly taints their conclusory statements to the effect that Cressler’s comment was racially motivated.

Furthermore, Blue and Ballew immediately went to the Union office about the statement and their testimony at trial was that the matter was settled to their satisfaction. The fact that Blue and Ballew were not intimidated by the statement is evidenced by the fact that they immediately went to the Union to report the incident and, further, by the twelve (12) to fifteen (15) subsequent grievances and complaints plaintiff admits having filed with the Union and the EEO office. The record is void of any evidence that Cressler later retaliated against Blue in any manner for her exercising her right to file grievances and complaints of discrimination.

17. Blue’s only other allegation regarding Cressler concerned entries made on her “7 Card” following her refusal to sign her performance appraisal. But even plaintiff admitted at trial that this problem was resolved to her satisfaction after a grievance was filed. At most, these two incidents can be seen as evidence of a personality conflict between Cressler and Blue, but again, the court repeats, no evidence of discrimination can be found in the record. Indeed, Cressler was simply part of a lengthy list of peers and superiors, black and white, who suffered through personality problems with Blue. Cressler may not have handled either situation well, but that does not make him a racist or mandate a finding that his actions were racially motivated. There simply is no evidence in the record that Cressler treated Blue, Ballew or any other black employee differently on the basis of race. Ironically, Blue all but admitted this fact during cross-examination when she stated that she did not remember if Cressler had discriminated against her. Test, of Blue at 139. 79 Later plaintiff changed her testimony and stated that Cressler may have discriminated against her and, finally, after defense counsel referred the plaintiff to her pre-trial deposition, plaintiff stated that she wanted to amend her answer to state that Cressler did discriminate against her. Id. at 163 and 171-72. 80

*1252 18. Blue also complained about the treatment accorded her by SSG Ramos, an NCOIC at DC-6. Plaintiff claimed that on one occasion he used profanity with her and that as a result of the incident, he was required to attend an EEO class on human relations. Test, of Blue at Vol. VII, pp. 33-39.

Ramos’ version of the incident was much different and the court finds Ramos to be an extremely credible witness. Ramos testified that he directed Blue to work with a dentist (Dr. Lamb) and that she refused. Test, of Ramos at 1355-57. He asked her two or three more times and she still refused. He admits that after her final refusal he was frustrated and while walking away from her uttered the words “damn it.” 81 He testified that she began to dial the telephone and yelled something to him. He instructed her to make the call later and to get to work.

Ramos also atempted to discuss the incident with her later in the day and during the discussion she shouted that she “worked for the United States Government, not him.” Id. at 1359-60. See also Test, of Kurz at 1098. 82 Ramos then proposed a letter of reprimand for Blue. Id.

Ramos emphatically denies that he was ever required to take a human relations course due to this incident. Test, of Ramos at 1375. The court finds this clearly to be the case. Even plaintiff later confessed that her earlier testimony might have been mistaken as she based that testimony primarily on (1) part of an overheard conversation between Ramos and Cressler and (2) her assumption that since she had demanded Ramos take the course in her initial grievance about the incident, he must have been required to take it. Test, of Blue at Vol. VII, pp. 77-84 and 103-04. 83

*1254 19. Again, despite her complaints about Ramos, Blue admitted on cross-examination that Ramos did not discriminate against her on the basis of race. 84 Test, of Blue at 140. Thus, as with the background evidence offered against Cressler, the court finds no basis for inferring that the actions of Ramos were motivated by a racial animus.

20. As further background evidence, Blue testified about COL. Paquette and SGT. Vincent, who occupied the positions of OIC and NCOIC, respectively, during approximately the same period of time (1979-80). Testimony concerning these two officials is important since they were involved in the alleged discriminatory annual appraisal for which Blue seeks relief.

Blue claimed that Paquette (white) treated blacks differently than whites. She charged that he treated them like “nothing” and “looked down his nose at them.” Test, of Blue at 29. In support of this allegation, plaintiff testified that she observed Paquette treat a black NCOIC, SGT. Wayne Jones, poorly and that Paquette refused to promote a black sergeant, Linda Garner, to NCOIC.

21. The two alleged victims of Pa-quette’s discriminatory actions testified in this case. In stark contrast to Blue’s version, both Jones and Garner stated that Paquette treated them no differently than he treated anyone else, although Garner admitted that she and Paquette had non-racially based differences of opinion. Furthermore, Garner said that she voluntarily chose to forego the NCOIC position at DC-6 to obtain more chair-side experience as a dental therapy assistant (DTA) and that the only reason she raised the question about becoming NCOIC at all was because Blue and Ballew pressured her into it. Test, of Garner at 1700-01 and 1711-12. The court finds both Garner and Jones were extremely credible witnesses, particularly Jones, who was on the witness stand for over two days and whose testimony was extraordinarily candid and honest under very difficult circumstances.

22. In addition, two other factors are salient with respect to plaintiff’s claim that Paquette refused to promote Garner on the *1255 basis of race. First, a black (Jones) was placed in the position that Blue claims Pa-quette discriminatorily denied to Garner. Second, Gamer had just completed DTA School and by regulation was required to spend two years at chairside.

Based on all of the above, the court finds that plaintiffs opinion with respect to Pa-quette is predicated on nothing more than pure conjecture. The court specifically credits the testimony of Garner and Jones and finds absolutely no evidence that Pa-quette treated DC-6 employees differently on the basis of race.

23.Blue related two incidents involving Vincent, the white NCOIC, that she contends demonstrated his discriminatory animus. The court notes that these events took place after the alleged discriminatory appraisal had been rendered by Vincent and Paquette in 1979.

The first incident occurred on April 3, 1980. Blue testified she had parked adjacent to the back entrance to DC-6 and Vincent told her to move her car. She admitted she told him she would only do so when a space became available. Blue claimed that within a few minutes Vincent presented her with a statement of counseling for her refusal to obey his order. She refused to sign the statement and Vincent allegedly recorded the matter on her “7 card.”

Blue claimed Vincent’s actions were discriminatory because a few days earlier Ann Randall, a white dental assistant, had parked in the same place, and though she refused to immediately move her car, no disciplinary action was taken against her. Blue testified further that she had not been previously told she could not park in the spot, nor area was a for supply vehicles only.

24. Plaintiffs testimony about the April 3, 1980, incident is in severe conflict with that of numerous witnesses. First, there is absolutely no doubt that Blue had been told on a number of prior occasions she was not to park in the fire lane or the area adjacent to the exit. See, e.g., Test, of Vincent at 1472-74; Test, of Martha Soeh-ren at 1071-72; Test, of Kurz at 1100; Test, of Roach at 1763; Test, of Jones at 661. 85 Yet, Blue consistently and directly disobeyed the continuing directives of her OIC’s and NCOIC’s in this regard (as did Ballew). Second, Randall flatly denied ever being directed to move her car because it was parked adjacent to an exit. Test, of Randall at 1408. Randall’s testimony is corroborated by Vincent who stated that he had no recollection of ever requiring Randall to move her car. 86 If Randall parked her car by the exit, it occurred one time and she immediately moved it to a proper parking area without an order from Vincent. Test, of Vincent at 1492-93. The court finds Randall to be a credible witness.

25. What adds significantly to the credibility of Vincent and Randall with regard to the parking incident, is that despite the prior warnings and the April, 1980, counseling, Blue incredibly continued to defy command orders not to park in the fire lane area. If anything, her decisions to park illegally became more flagrant. Sergeant Jones stated that he had problems with Blue parking adjacent to the exit before Vincent became NCOIC and also after Vincent left the clinic. Jones notes that for as long as he was at DC-6, all employees had *1256 been routinely reminded not to park adjacent to that exit. See, e.g., Test, of Jones at 659-664 (“[T]he only people that I had problems with parking there was Ms. Blue and Ms. Ballew.”); Test, of Matlock at 1130-31; Test, of Hutchinson at 1675-76 (Blue stated at staff meetings “she would park where she wanted to park.”); Test, of COL. Soehren at 1723-27.

26. In sum, a host of witnesses, including one OIC and three NCOIC’s, established that warnings continued after the April, 1980, incident, yet Blue continued to park her car in blatant disregard of instructions. The evidence relating to the parking incident hardly established a racial animus on the part of Vincent. On the contrary, it indicates a contemptuous disregard for authority on the part of Blue. 87 From the evidence, it is clear that more severe disciplinary action than was ever taken against Blue (and Ballew) would have been warranted. Vincent, Jones, Matlock, Soehren and others showed excessive restraint in their handling of Blue’s deliberate misconduct.

27. The other incident Blue related about Vincent occurred the day after the confrontation over parking. Blue claimed that she had been assisting in the treatment of a black patient and that the patient needed help in getting to her car after treatment. Blue testified she escorted the patient out of the building and that while she was answering the patient’s questions Vincent called from an upstairs window for her to come inside. She admitted she ignored him and continued her conversation. Blue claimed when she did return inside Vincent counseled her about being absent from her duty station and made an entry about the incident on her “7-card.”

In addition, Blue claimed Vincent had observed her similarly escort white patients to their cars and had never questioned or stopped her about those instances. Thus, plaintiff felt Vincent had discriminated against her on the basis of race.

28.Vincent admitted he counselled Blue on this occasion, but denied that race had anything to do with it. He stated Blue was only counselled because she had left the next patient alone in the dental chair when she went outside, 88 and because she compounded the problem by ignoring his request to come back inside to her work site.

29. The conflicting evidence concerning this incident reveals far less about any possible discriminatory animus on the part of Vincent than it does about the propensity of the plaintiff to ignore the rules of and authority at DC-6. The court finds it probable that the events of April 4, 1980, were simply a continuation of the confrontation between Blue and Vincent from the day before, with both parties acting out of anger and frustration. Vincent’s decision to counsel Blue, whether the most appropriate response to the situation or not, certainly was not without some justification. It is not discrimination when a supervisor decides to act firmly, even if a more lenient response might have avoided further confrontation.

30. Blue next testified about her black OIC, MJR. Sykes, and one of the NCOIC’s that served with him, SGT. Tuanquin. Blue stated that Sykes, like the black NCOIC Jones, is an “Uncle Tom” who harassed her solely because of her involvement in this litigation. Test, of Blue at 87 and 102. As an initial matter, while the court recognizes that persons of the same race may discriminate against each other, that did not occur in this case. Sykes, like Jones, was an extraordinarily credible witness. Indeed, these two witnesses received the highest credibility ratings on a rating scale kept by the court throughout the trial. The court seriously doubts that ei *1257 ther man has ever acted in a discriminatory manner toward any employee, black or white, civilian or military.

Notwithstanding Blue’s name-calling, the lack of evidence to support any allegation against either officer is total. The real problem lay not with Sykes and Jones, but with Blue in her attitude, her conduct, and her personality. Perhaps better than anyone who testified, Sykes summed up what it was like having to work with Blue at DC-6:

A: [i]f she’s told to do something by her doctor who was supervising her, she’d say, no, I won’t do it; then the NCOIC would have to come and tell her, do it, or the doctor would come to me, as has been done on occasion, and say, why won’t Ms. Blue come to work, she’s supposed to be at the chair working with me and she’s not;

So I’d have to say, well, go back and tell her that she is supposed to be there working with you.

So she just required constant guidance and she just taxes you, taxing to the spirit is what she is. You always had to prod her to do what she was told.

Q. How does Ms. Blue take criticism?

A. Not well. She is usually defensive about it, she just doesn’t take criticism well. It’s just a matter, whenever she is corrected the person who is correcting her is always wrong. It’s one of those things, if you’re black you’re going to be an Uncle Tom; if you’re white, you’re going to be prejudiced. You can’t win.

Test, of Sykes at 1191-92.

31.Blue claimed that shortly after Sykes arrived at DC-6, he called her into his office and questioned her about her involvement in this lawsuit. He allegedly told her that he was aware she was prohibited from discussing the details, but he wanted to inform her that she was wasting her time because “you can’t fight the government.” Sykes denies ever making this statement or questioning plaintiff about the case at bar. Reviewing the testimony, the demeanor, and the motive and its Sykes’ testimony and finds plaintiff’s version unworthy of belief.

32. Blue also contends Sykes discrimi-natorily disciplined her for disrupting a clinic meeting. Blue testified she wanted to make a phone call just before the start of a meeting and Sykes prevented her from doing so. When she persisted, believing Sykes had changed his mind and would now allow her to call, he haled her into his office to discuss the incident. Plaintiff also claimed other employees were allowed to make such phone calls and that she was singled out in this instance for unjustified discipline. Sykes subsequently presented Blue with a proposed letter of reprimand. PX188(g).

33. Blue’s recollection of this incident was at sharp variance with that of Sykes and other employees who attended the meeting. Sykes testified that Blue attempted to use the phone during the meeting, that he stopped her, and requested she wait until the meeting was over. Blue responded that it was an important call and started to dial the telephone again. For the second time, Sykes asked Blue to wait, but she flatly ignored him and started to dial the phone a third time. At that point, Sykes interrupted her and directed her to go with him to his office because of the disruption the incident was causing at the meeting. After reviewing what had occurred, Sykes proposed the letter of reprimand. Test, of Sykes at 1189; PX188(g).

34. The substance of Sykes’ testimony was corroborated by witnesses Hutchinson and Roach, both of whom attended the meeting and were co-workers of Blue. Test, of Hutchinson at 1668-69; Test, of Roach at 1783-84 and 1793. The court credits the testimony of Sykes, Hutchinson and Roach and finds the plaintiff’s actions were not only disruptive and discourteous, but unprofessional as well.

Plaintiff alleges in a conclusory manner that Sykes took reprisals against her because of her participation in this litigation and that his proposed reprimand in this instance was an example of his actions against her. In fact, however, the evidence *1258 showed exactly the opposite. Sykes proposed to reprimand her precisely because she deserved it. Plaintiff was insubordinate; she disobeyed her OIC’s order, disrupted the meeting, and embarrased Sykes. Frankly, plaintiffs allegations against Sykes in this instance (at trial and in pretrial grievances) provide just another glaring example of the consistent pattern and practice plaintiff engaged in of harassing management officials while using race as a subterfuge. Plaintiffs claim against Sykes is nothing short of frivolous.

35. Sykes acknowledged that the DEN-TAC Commander (who had only been at Ft. Bragg a few weeks) chose not to finalize the reprimand. PX188(a). However, the fact that the reprimand was not finalized does not mean the events did not occur, or that there was not ample evidence to support the proposed discipline — there clearly was. Many factors may influence a decision to settle a dispute as was done here. Indeed, the testimony of COL. Jacobsen, the deputy DENTAC Commander, reveals that during his meeting with Blue, she did not dispute the facts related by Sykes; rather, she simply felt she should not be reprimanded. Test, of Jacobsen at 1415-16. Jacobsen stated that he supported the reprimand. Id. Colonel Brown, the new DENTAC commander eventually found that “although ... management's position was meritorious and procedurally sound ...,” PX188(a), and that the proposed reprimand was warranted, enough time had already been consumed in dealing with the matter and the reprimand should not now be enforced.

36. Like so many of the incidents that Blue attributed to racial animus, the events involving Sykes reveal far more about Blue's personality, attitude and demeanor than they do about the ADO's racial animus, The court is convinced that Sykes was an honest and professional OIC, who was motivated solely by his responsibilities to keep order in the dental clinic and to provide competent care for all patients. What these incidents reveal is that any attempt to effectively supervise the plaintiff was deemed by her to be discrimination and never an honest or reasonable attempt to provide direction and guidance.

37.One other major incident involving Sykes was discussed at some length, for background purposes, and the court finds plaintiff's testimony describing the incident to be such a perfect example of the frustrating, evasive and inconsistent nature of her testimony throughout the trial (as well as that of Ballew), that portions of the transcript are duplicated herein. Setting the scene, on December 17,1982, Blue filed an EEO complaint (PX6(b)) alleging that Sykes had retaliated against her because of her continued participation in this litigation. Plaintiff's statement at the time was as follows:

A. On or about 1 May 1981 a Formal Class Action Complaint of discrimination was filed with the District Court in Fay-etteville, N.C., alleging a continuing pattern of race discrimination by past and present officials and other agents of the Department of Army and Fort Bragg. Such complaint is in pre-litigation stages.

B. On or about 1 May 1981 I joined the Class as an agent representative of the claims of the Class.

C. On or about 12 May 1982 a newspaper article was posted in my work location, Dental Clinic # 6, such article, at enclosure 1 hereto, clearely states my involvement as agent of the Class.

D. On the date the article was posted the Clinic Officer in charge, Major F. Sykes, became visibly upset, called a group meeting of Clinic employees and made statements to the group concerning persons, (visitors) coming to the clinic in retaliation to the Complaint.... no one was to talk to them but rather they (visitors), should be referred to his, (Sykes’) office....

******

F. Following my joining the Class I was, on 25 July 1982, the subject of a proposed disciplinary action. Such discipline, initiated by Major Sykes was rescinded through a Union grievance. Such proposed discipline was a reprisal against me as stated above.

*1259 PX6(b) at 2 (emphasis in original). This complaint was signed by Blue on the date it was filed.

38. Plaintiffs testimony at trial (on cross-examination) concerning her complaint follows, in pertinent part, and the credibility level of the evidence is self-apparent:

(Document handed to the witness)

“Q. I believe that is a complaint that you filed on December 17, 1982, is that correct?

“A. Yes. I didn’t file it, that was the day I—

“Q. —Signed it.

“A. No. that was the day I complained over an incident. I had a complaint after that.

“Q. Now, you allege in your complaint that on or about, Your Honor, I’m looking at not an exhibit, a complaint that she filed, a newspaper article was posted at my work location, Dental Clinic No. 6, an enclosure here, that clearly states my involvement as agent of the class. Do you recall that?

“A. (No response).

“Q. And then you said that Major Sykes, on the date the article was posted the clinic officer in charge, Major Sykes became visibly upset. And it’s your testimony that Major Sykes became upset because you were part of this class action, right?

“A. I don’t think he was upset with me, he was upset that there was a class action suit going on at Fort Bragg. I’m not saying he was upset with me personally.

“Q. Well, let me ask you, when you say in the complaint, became visibly upset, what did you think that Major Sykes was upset about?

“A. That there was such a lawsuit going on at Fort Bragg and that possibly someone would be coming around asking questions.

“Q. But you did allege that Major Sykes discriminated against you, didn’t you?

“A. Right.

“Q. you Sykes disciplined you as a result of your involvement in the class action, don’t you, Ms. Blue?

“A. I don’t remember if that’s part of that one or not. I’d have to read it.

(Counsel confer)

“Q. I want to show you a copy of your complaint, this is her very own complaint, Your Honor.

“MR. CHAMBERS: We have an exhibit 6-B, Your Honor, that I think is the same as the charge; you’re not showing her the whole file, are you?

“MR. LOEWENBERG: No, I’m just showing her that charge.

(Document handed to the witness)

“Q. You notice, Ms. Blue, looking at page 2 of Plaintiff’s 6-B, do you see the page, facts bearing on my complaint are as follows?

“A. Yes.

“Q. And if you look at E and F; do you see that?

“A. Yes.

“Q. And then you notice, look at F, it says, filing my complaint on July 25, 1982, I was the subject of discipline. Do you see that?

“A. Right.

“Q. Now, I take it that it’s your testimony, your opinion that Dr. Sykes waited almost a year; by the way, Your Honor, the copy that she has and the copy of 6-B are not quite the same. I can approach the bench and show you. I think they made corrections.

“THE COURT: Plaintiff’s Exhibit 6-B?

“MR. LOEWENBERG: Yes. Maybe I can ask a couple of questions, Your Honor, to clarify the matter.

“THE COURT: All right.

“Q. Ms. Blue, if you look on that second page, on A, B and C, your copy has some penciled or handwritten item?

"A. Yes.

*1260 “Q. And let me show you the Plaintiff’s 6-B where those marks are not made, do you see that?

“A. Yes.

“Q. Now, tell me, which is the correct version, which is correct, do you know?

“A. I don’t know.

“MR. CHAMBERS: Do you mean which date is correct?

“MR. LOEWENBERG: You see, on the handwritten copy, it says, on or about 14 September ’81 the newspaper article was posted; in the copy that has no corrections it says, on or about May 12, 1982.

“MR. CHAMBERS: May 1st.

“Q. Which is correct, Ms. Blue?

“A. Which what is correct? I have ’81 on both. I don’t have a ’82.

“Q. Plaintiff’s 6-B.

“A. This says ’81 on both.

“Q. On C? Look at the letter C.

“A. That says '82.

“Q. Look at the copy that is handwritten, it says 14 September '81.

“A. I didn’t write it here.

“Q. Is the copy 6-B correct?

“A. I’d have to look at my notes. I don’t know.

“Q. You don’t have any idea when that newspaper article appeared, do you?

“A. Not without looking at my notes.

“Q. Which notes would you like to look at?

“A. The ones pertaining to ’81 and '82.

“Q. Go ahead and look at them.

“A. You have them, don’t you?

(Documents handed to the witness)

“MR. LOEWENBERG: I will assist you just a little bit; I believe the lawsuit was filed in September of ’81.

“A. It’s ’81 then.

“Q. Well, I’m asking you. If you’d like to agree with me, that would be fine. Why don’t you look at your notes and see if you can find it.

“A. I don’t believe the '82 date is the correct one.

“Q. You don’t believe the handwritten copy is correct?

“A. I don’t know if that’s the correct one. I know the ’82 date is wrong.

“Q. Is wrong?

“A. Uh-huh.

“Q. Now, which note did you look at, by the way, when you were looking at them?

“A. I wasn’t looking at anything, I was just thinking in my head.

“Q. You said you wanted to look at your notes. Now, I wonder if you could tell me which notes would assist you in finding the date?

“A. I don’t have any notes for ’81.

“Q. Although you said you had to look at your notes to help you decide?

“A. Well, like I said, I didn’t know which years I didn’t write and which years I did and which months I wrote. No, I don't know everything that’s in my notebook to my memory.”

# # * # # >9

“Q. So you wanted to look at your notes to see if that would refresh you?

“A. Yes.

“Q. September ’81 was the right date, wasn’t it?

“A. I don’t know if that was the right date.

“Q. You know the other one is wrong, don’t you?

“A. (No response)

“Q. You know the ’82 date you see is wrong, don’t you, Ms. Blue?

“A. I don’t know that for a fact, no.

“Q. You don’t know that for a fact?

“A. No.

“Q. Moving along to E and F, I take it your testimony is that this article was posted in September ’81 or thereabout and that Dr. Sykes waited from September '81 to July 25th then to impose discipline as a reprisal, impose discipline on you as a reprisal?

*1261 “A. Excuse me. Dr. Sykes was not working in our clinic when that notice was posted on the bulletin board.

“Q. He was not working in your clinic?

“A. No. That’s some kind of an error.

“Q. Ms. Blue, look at D then. It says, on the date the article was posted the clinic officer in charge, Major F. Sykes, became visibly upset.

“Now, you say he wasn’t even there?

“A. Right, he wasn’t there when it was posted, no.

“Q. Well, I’m a little confused. Why did you write that he became upset?

“A. Well, see, I didn’t write this. I gave information to my representative and then I was out of town, then I moved out of the state, and what I know of it is that the article was posted before Major Sykes, that somehow or other something came up about the class act, the lawsuit, and he went up to the bulletin board where it was posted and then he was, there was something about him finding out about this lawsuit and then he was visibly upset about it, but he did not, he was not in the clinic when the article was posted because I didn’t even post the article.

“Q. Well, let’s go back over that. You stated you were what, out of state?

“A. This is ahm, an amendment or something that had to do with my complaint because before it was finished I moved out of the state and I left authorization for my union representative to carry on with my EEO complaint.

“Q. Now, where did you move to?

“A. San Francisco, California.

“Q. Okay. So you moved out to San Francisco, California in something like July, 1983, right?

“A. Right.

“Q. Okay. Now, the date of this complaint, is December 17, 1982.

“A. Yeah. But it didn’t just go one, two, three, I mean, there were periods of time that they would go over this and they’d send something back to us and we’d send something to them and by ’83 of June I was gone, so I didn’t get paperwork.

“Q. Let me understand your testimony. Do you have Plaintiff’s 6-B in front of you, Ms. Blue?

“Now, that complaint is dated December 17, 1982. Right?

“A. Right.

“Q. And your signature appears to the right of that?

“A. Right.

“Q. And this is your complaint, right?

“A. Right.

“Q. And then we turn to the second page and you say, somebody wrote on your complaint here, typed, on the date the article was posted and the clinical officer in charge, Major Sykes, became visibly upset.

“A. Well, he misunderstood what I said.

“Q. Who misunderstood?

“A. My representative.

“Q. Who is that?

“A. Mr. Ron Witiak.

“Q. Mr. Witiak typed all this up?

“A. He was my representative so this is where it came from.

“Q. Did you read this?

“A. I haven’t, this is the first I’ve seen of it. Because like I said, I was gone. When I left it was still in the stages of being investigated by Mr. Cortis.

“Q. So you signed a blank complaint?

“A. No, no, no. This is my original complaint here.

“Q. That’s the front page, right? But the second page, was that done after-wards?

“A. No, I’m not saying that either.

“Q. Well, did you read the second page before you signed the first one?

“A. This has been amended to many times. I wrote first page. I know things have been amended because. I was getting correspondence back and forth. I don’t know if that’s the original or what.

“Q. Let me call your attention to block ten. Look at block ten. It has A, do you *1262 see that, block 10? I was issued a proposed letter. Do you see that, Ms. Blue?

“A. No, I don’t.

“Q. Block 10, first page. [Court: this block establishes that the complaint has an “attached sheet.”]

“A. And you said A or B?

“Q. A, Block 10.

“A. Don’t have a A.

“Q. I think you’re looking at the second page, Ms. Blue.

“A. First page, okay.

“Q. Do you see Block 10?

“A. Block 10.

“Q. Do you see No. A?

“A. Okay.

“Q. Turn to the second page, B; then C.

“A. Uh-huh.

“Q. Okay. Now when you signed this complaint did it only have one page?

“A. No.

“Q. Had two pages?

“A. Yeah or more.

“Q. Well, actually had four pages, isn’t that true?

“A. It might’ve had more than that. I’m telling you it was amended several times.

“Q. Now, let me ask you this, you say that when the article was posted, you’re shaking your head.

“A. Because I did not say that.

“Q. I see. I haven’t finished my question, but tell me what you didn’t say.

“A. I didn’t say when the article was posted Major Sykes got visibly upset.

“Q. Okay. My question was, you say that’s not correct, and that was because Major Sykes was not there, is that your testimony?

“A. He wasn’t there when that article was posted. It was posted before he even came to our clinic.

“Q. Okay. The article was posted before he came to the clinic.

“A. Right.

“Q. Turning to C then, it says 14 September ’81, is that when the article was posted?

“A. Here it was 12 May ’82 on my C.

“Q. Look at the other one.

“A. On or about, it has 12 May '82 crossed out and then parentheses 14 September ’81.

“Q. I’m asking you, Ms. Blue, which date is correct?

“A. Which date what was correct?

“Q. Approximately when was it posted? Do you understand my question?

“A. When was the article posted approximately?

“Q. Approximately?

“A. Sometime during, I don’t know when the article was posted. Somebody posted it though.

“Q. So you don’t know which date is correct, right?

“A. Right.

“Q. And you in fact didn’t prepare this?

“A. I gave my side of what was going on and it was typed up by someone else.

“Q. Now, when was it that Major Sykes who is black got visibly upset, when was that?

“A. After being at the clinic for a while and finding out about the lawsuit; when it was exactly I do not know.

“Q. So, could you look at page 2 of this complaint and tell me what is incorrect about the complaint that you would not have said?

“A. Which one am I looking at?

“Q. Page 2.

“A. Either?

“Q. It doesn’t matter. What else is incorrect about those allegations?

“A. Nothing that I can see.

“Q. Nothing else besides that?

“A. That I can tell, no.

“Q. Do you remember the month when this happened, by the way, Ms. Blue?

“A. The month what happened?

*1263 “Q. Major Sykes got upset?

“A. I just said I didn’t know. I couldn’t remember.”

******

“Q. Okay. Before I get into that I want to ask you one other thing. You remember on yesterday you said that you had never seen your EEO complaint that you filed and that you were gone at the time, do you recall that?

“A. No, I didn’t say I never saw it, I never saw the amended ones.

“Q. Well, what amended complaints did you file and when?

“A. I didn’t file a amended complaint; I’m saying when I filed the complaint it was amended after I was gone.

“Q. Who amended your complaint?

"A. Ron Witiak, my representative.

“Q. Okay. Now, when you say Ron Witiak amended your complaint, you’re referring to the letter that he sent to Pat Crain? Is that what you’re talking about?

“A. I don’t know.

“Q. Well, what are you talking about when you say he amended it?

“A. I don’t know if that is the one he amended or what. I know he had amended part of my EEO complaint and then he did some more amending after I was gone.

"Q. Let me just ask you, you had seen the—

“A. —The original.

“Q. You didn’t see the original?

“A. I saw the original.

“Q. So-

“A. —And it was later amended.

“Q. In fact, you gave a statement, didn’t you?

“A. Gave a statement to who?

“Q. Beula [sic] Mae Harris.

“A. I gave her plenty of statements, yes.

“Q. You gave her a statement about this complaint?

“A. She was my representative.

“Q. And in was no discrimination, didn’t she?

“A. She didn’t tell me that.”

******

“Q. Now, Ms. Blue, did you get a copy of the letter that Witiak sent to Patricia Crain?

“A. I may have.

“Q. You may have?

“A. (No response).

“Q. Well, let me show you the letter that is dated December 29, 1982, and ask you if that is the letter that Witiak sent to the union, sent to Patricia Crain about correcting those dates?”

******

“A. Possibly, but like I said before, the article was posted before Major Sykes even came to the clinic.

“Q. But we’re talking about the fact that you said yesterday you were gone when all this happened, and if you notice the date on that letter, it’s 29 December 1982 and you were there?

“A. That was one of the amendments. I didn’t say I was gone through all the amendments.

“Q. What amendments are you talking about? Who filed an amended complaint?

“A. I said Mr. Ron Witiak filed amendments after I was gone also.

“Q. You mean he filed and you—

“A. —He had a notarized statement to act on my behalf.

“Q. And you didn’t even see these statements?

“A. I couldn’t see them if I wasn’t here.

“Q. Well, let’s look at this letter here. You were there when that letter was written weren’t you?

“A. Yes.

“Q. Now if you turn to the next page of that document you gave a statement to George Portis, didn’t you?

“A. Yes.

“Q. And that statement was given to Mr. Portis who investigated the complaint for USACARA?

*1264 “A. Right.

“Q. Do you remember when you gave that statement?

“That is Defendants’ 257, your Honor.

“A. (No response)

“Q. You signed that statement in March 1982, isn’t that true?

“A. Was it March? I don’t know if it was March or April, I can’t recall.

“Q. Look on page 42 which is page 14 of your affidavit; the 30th day of March?

“A. Okay, yeah.

“Q. Are you saying that after USA-CARA did its investigation you changed the complaint, is that what you’re saying?

“Is that what you’re telling this Court?

“A. Did I change the complaint?

“Q. Yes. Did Mr. Witiak change your complaint after USACARA did its investigation?

“A. There was amendment to this, also.

“Q. I’d like you to answer my question. Are you—

“A. —Yes.

“Q. I see. And where is that recorded and with whom?

“A. I don’t know. He sent it up to whoever he was supposed to send it to.

“Q. What did you amend in the complaint? What did you tell Mr. Witiak he should do, what did you authorize Mr. Wit-iak to do that you hadn’t done before?

“A. To act on my behalf while I was gone.

“Q. That isn’t what I'm asking you, Ms. Blue. I’m asking you what did you want him to do to change the complaint that you hadn’t done before? What did you ask him to add?

“A. To add? I told him to subtract.

“Q. What did you tell him to subtract.

“A. Major Sykes was not in the building when the article was posted.

“Q. I see. So that is the one thing you told him to do, that is one thing you told Ron Witiak that he should see is deleted from your complaint.

“Now, if you look at that letter that I just showed you from Mr. Witiak on December 29th, doesn’t he in fact do that in there?

“It’s on page 28.

“A. I have that page. I am still saying that the article was not in the building. What I’m saying is he became upset when investigations were starting toward the class complaint. The article had been posted on the bulletin board long before he came.”

Test, of Blue at 121-133 and 163-170. For other examples of plaintiff’s extraordinary testimony, see pp. 95-101, 156-61 and 172-74 of the transcript.

39. Blue’s testimony regarding SGT Tu-anquin was sketchy and strained. He rendered an annual performance rating of the plaintiff in July of 1982, finding her “fully successful” under the new GPAS. 89 Blue felt she deserved the highest rating possible. Blue testified that when she received the rating she questioned Tuanquin about it and asked whether he had checked with all the doctors that she worked with prior to signing the appraisal. She claims he said no. Subsequently, plaintiff filed an EEO complaint about the rating, (PX6(b)), contending that the rating was unfairly low because of her race. 90

40. In contrast to Blue’s evidence, Sykes, once again, provided a very cogent explanation of the rating. 91 He pointed out that the GPAS was a new system and that both he, as reviewer, and Tuanquin, as rater, had procedural difficulties with the form. In fact, he stated the rating complained of by Blue was one of the first to be conducted under the new system and it *1265 had to be redone at once. stated that Tuanquin asked him for input and that he was aware of at least one or two other doctors who were asked about Blue’s performance. Finally, Sykes explained that he agreed with the rating because contrary to Blue’s assessment of herself as the “best” dental assistant from the day she arrived to the day she left, Blue was only an average employee, in terms of career skills, and that was accurately reflected in her rating. See Test, of Sykes at 1233-39.

41. Two other points regarding the July, 1982, rating demand mention. First, as Sykes pointed out, Tuanquin had rated other black employees at DC-6 higher than Blue and higher than some whites at the clinic. Test, of Sykes at 1238-29. Second, the “fully successful” rating was entirely consistent with every other annual performance rating Blue received at Ft. Bragg. Prior to 1982, Blue had been rated “satisfactory,” the middle grade on a three-grade scale, in all her annual performance appraisals. A number of these appraisals pre-dated any informal or formal allegation of discrimination by Blue and were never the subject of a grievance or complaint. “Fully Successful” under the present GPAS system totally equates to a “Satisfactory” rating under the old system.

42. In conclusion, the court cannot attribute any racial animus to the rating rendered by NCOIC Tuanquin. Rather, Sykes’ testimony persuasively explained the limited procedural irregularities that occurred in developing the plaintiff’s rating and demonstrated the fact that rating was accurate.

43. Finally, for background purposes, the court finds plaintiff’s problems with her supervisors and co-employees at DC-6 stemmed not from any racial bias on their part, but rather from plaintiff’s personality, her unique view of a supervisory-subordinate relationship, and her narrow vision that seemingly saw all employment disappointments or adversities solely in racial terms, yet attributed any favorable consideration she received as being merely her just dues. Plaintiff, in fact, performed her job duties properly, even very but only when she wanted to do so. On a number of occasions, Blue was simply unreliable and unproductive. In sum, the court finds that plaintiff believed she should be allowed to freely challenge authority because she is black, with the result being inexcusable conduct directed against supervisors, dentists, and co-employees alike — conduct which could not be condoned if DC-6 was to perform its function. Examples of testimony supporting this finding follow seriatim.

44. Martha Soehren testified that Blue had a terrible attitude and that she did not enjoy working with her. She testified that she observed occasions where Blue disagreed with an NCOIC, actively solicited a letter of appreciation from a dentist, was loud and obnoxious in the clinic, disrupted clinic operations, and slammed doors and acted in an unprofessional manner. Test, of Soehren at 1070-76. Although the court recognizes that Soehren is the wife of COL. Soehren, an ADO, the court credits this portion of Soehren’s testimony. The probative value of the evidence increases because it is consistent with the testimony of a number of other disinterested witnesses.

45. SSG Ramos testified that Blue often read newspapers and magazines while assisting patients, refused to clean around her dental chair area as all dental assistants were required to do, never volunteered for assignments, showed little initiative, left patients alone in the dental chair so she could smoke a cigarette or take a break, and exhibited little or no respect for his authority. Test, of Ramos at 1357-62. Blue was a “freelance dental assistant [who] did what she wanted whenever she wanted.” Id. at 1357. The court fully credits Ramos’ testimony.

46. Like Ramos, SGT. Kurz (a DTA) testified that plaintiff read newspapers while assisting patients and rarely volunteered for any assignments. Test, of Kurz at 1094-1101. Carolyn Cave, a dental assistant, testified that plaintiff was not professional in her conduct, acted condescendingly to CPT. Howell, a dentist, while he was suturing a patient, and observed *1266 Blue and Ballew yelling at each other across the bay area of the clinic in front of a number of patients. Test, of Cave at 1555. Although the court does not credit all of Cave’s testimony, 92 again the court finds this aspect of her testimony unimpeachable and fully corroborated by a host of witnesses.

47.CPT. Howell testified that plaintiff refused to assist him on a least two or three occasions, a situation shocking to him given his capacity as plaintiff’s superior and a dentist at DC-6. The court recognizes that Howell’s testimony, as well as that of some other witnesses, refers to incidents occurring after the promotion claims at issue. See also, e.g., Test, of Jones and Harmon. Accordingly because of its remoteness in time to plaintiff's conduct in 1979, it has minimal substantive relevance, if any, as to Blue’s competence, skills and even attitude at that time. Subsequent acts rarely show lack of animus at a previous time, particularly as the time gap between events increases. Indeed, if plaintiff had been discriminated against in 1978, 1979 or 1980, her later conduct, no matter how bad, could not be used against her as employees understandably turn bitter and hostile if they have previously been mistreated by their employer.

Notwithstanding that fact, Howell’s testimony is very relevant on the issue of plaintiff’s credibility, as Blue specifically denied ever not assisting Howell or any dentist, denied any unprofessional conduct, denied all acts of misconduct and insubordination, cast herself in the light of being the best dental assistant at DC-6 throughout her tenure, and charged a number of post-1979 NCOIC’s, OIC’s and dentists with being ADO’s. Thus, as to credibility, the court considers the post 1979/1980 testimony relevant and findings of fact on those incidents are therefore included herein.

48. SGT. Jones testified that plaintiff was a good dental assistant, when she performed her job, but that encouraging her to properly perform her job was the difficult part. Blue generally had a bad work attitude, rarely volunteered, left patients in the dental chair on occasion, was late to work a number of times, fell asleep while at work on one occasion, refused to clean her dental chair area, and watched a television she brought to work while tending to patients. See generally all of Jones’ testimony. As for the number of times Jones had to counsel, discipline or talk to Blue about her conduct, Jones stated “I couldn’t write all the statements concerning the issues and times that I had to deal with Ms. Blue, and I mean, I would have a big book, and there’s no way I could keep up with them.” Id. at 903-04. 93

49. Other DTA’s and dental assistants fully corroborated the above testimony. Ann Randall stated that plaintiff read newspapers and watched television while assisting patients, left patients alone in her dental chair, refused to clean her chair area, refused to work with certain dentists because they were slow and complained of working at the front desk (reception) area of the clinic because “it was not in her job description.” Test, of Randall at 1383-90. The result of Blue’s (and Ballew’s similar) conduct was a “tension-filled” atmosphere between plaintiff and the dentists. Id. at 1385.

Marilyn Roach testified that plaintiff was disrespectful to supervisors, read newspapers and magazines while patients were in her dental chair, refused to clean her chair area, interrupted staff meetings and was less than punctual. Test, of Roach at 1758-65. Although Roach’s testimony was more general in nature, lacking details in certain aspects, the basis of the testimony was not impeached.

*1267 Similar evidence can be found in Suzanne McPherson’s testimony at 1615-16, Anita Hutchin’s testimony at 1656-57 (told CPT. Howell he was “stupid” while patient was in dental chair), MJR. Sykes’ testimony at 1189 (played on intercom like a child), and Dr. Harmon’s testimony at 1797-1800 (plaintiff rude to patients, refused to pull medical records when requested by dentist, and rebutted Harmon’s advice to a patient.) 94

50. Referring back to plaintiff’s claim of conspiracy, the court simply cannot ignore the overwhelming weight of the evidence and accept at face value plaintiff’s unsubstantiated, self-serving, contradictory, and inconsistent claims of discrimination. Blue may sincerely believe that nearly all her co-workers and supervisors, be they black or white, colluded against her because of her race, but credible evidence to support any such allegation is non-existent.

Claims for Relief

The court will first consider the 1979 supervisory appraisal and then the two merit promotion attempts.

A. The 1979 Supervisory Appraisal of Current Performance

51. Blue claimed that she was an outstanding dental assistant; indeed, as indicated, she testified that she was the best dental assistant at DC-6. 95 She also testified that the supervisory appraisal of December 1979 96 was the worst rating she ever received. She contended that her inability to be promoted was in part due to this appraisal. Blue testified she believed the rating was motivated by discrimination for two reasons: (1) because COL. Pa-quette had discriminated against other blacks and he was “behind” the rating, and (2) because whites received higher ratings. According to plaintiff, since she was the best assistant at DC-6, it follows that her rating had to be discriminatory.

52. The appraisal rated Blue on twenty (20) attributes, grading “A” (highest) to “E” (lowest) with “N” meaning not relevant. See Finding of Fact #34, Section III, supra. Blue received two B’s, eleven C’s, five D’s and two N’s. The court notes that C means the employee requires “about the same supervision as others.” All told, the appraisal indicated a satisfactory, but certainly not exceptional performance by the employee. The rating was signed by then SFC Vincent, NCOIC, and reviewed by Paquette, OIC.

53. As previously discussed, Blue’s “evidence” that Paquette discriminated against other blacks was completely negated by the testimony of the alleged victims of his discriminatory actions. Furthermore, Blue seemed to attribute the rating, in large part, to Paquette, when he was only the reviewer, not the rating supervisor. PX181(h)(l). Vincent testified he was responsible for the rating, as plaintiff’s NCOIC, and that the rating was prepared only after a meeting with all the dentists at DC-6. Their opinions were substantially relied upon since they observed Blue’s professional abilities first-hand. Test, of Vincent at 1478-86 and 1507-08. He recollected that some dentists would have rated Blue higher in certain categories, and others lower, but the end product was generally a consensus opinion. Id. In rating Blue, Vincent and the panel of dentists followed the instructions set forth on the rating sheets and exercised their best professional opinion concerning her skills and job performance. Id.

54. Vincent denied that race played any factor at all in the evaluation. He also pointed out that at the time Blue first complained of the appraisal, she said it was in retaliation for her Union activities, not because of race, and that race only became an issue months later. Id. at 1508. See *1268 also PX181(h)(l) at 3 — the appraisal— where plaintiff commented “I disagree with every part of this appraisal.... I feel this appraisal is in reprisal for my Union activities.”

55. Ernest Carter, the EEO counselor who investigated plaintiffs complaint about the appraisal, testified that Paquette unflinchingly adhered to his position that the appraisal was fair and accurate. Test, of Carter at 508. Carter also stated that he interviewed SGT. Jones, the NCOIC at DC-6 both before and after Vincent and that Jones would have rated Blue higher in three (3) areas: “Accepts responsibility for assigned work”; “Ability to present ideas logically, clearly and concisely in writing”; and “ability to present ideas orally.” However, Jones testified that Carter apparently did not understand the nature of Jones’ comments. Jones testified he agreed with the rating and that all he meant was that Blue would not hesitate to express her opinions, orally or in writing, about her supervisors, dentists, and co-workers. See, e.g., Test, of Jones at 757-58 and 978-81. He also pointed out that he would have given Blue a lower rating on cooperativeness. In support of his opinion, Jones cited numerous instances where Blue refused to do what he asked, claimed she was not required to perform a certain task, or was disruptive and contentious throughout the clinic. See generally Jones’ testimony.

56. In addition, Blue testified that the discriminatory nature of the appraisal was allegedly exposed because two less competent white employees were rated higher: Martha Soehren and Randall. At the outset, the court finds it difficult to compare Blue with Soehren, since Soehren was the clinic receptionist, not a dental assistant. Little meaningful comparison can be made when the job responsibilities are so dissimilar.

However, even if the two could be compared, the comparison would not favor Blue. The opinion of all supervisors and employees who testified on the issue was that Soehren was an excellent and cooperative receptionist. E.g., Test, of Morgan at 1307-09; Jones at 743-44. Unlike Blue. there was no evidence of any personality conflict or attitude problem on the part of Soehren.

57. Evidence concerning Randall is more probative. Blue offered nothing more than her opinion that she was a better assistant than Randall. Rebutting Blue’s opinion was the testimony of a number of dentists, supervisors and co-workers, all of whom stated that Randall was a better dental assistant than Blue, despite certain medical problems that resulted in a number of absences by Randall from work. See, e.g., Test, of Ramos at 1363; Cave at 1556; Kurz at 1096. See also Test, of Jones at 745; Roach at 1760; Harmon at 1798-99; Morgan at 1322.

58. Randall testified that she had been in the dental field for seven (7) years and had been a GS-6 DTA for three (3) years prior to coming to Ft. Bragg in 1978. She had to accept a downgrade to GS-4 in order to get the job at Ft. Bragg. Randall clearly possessed a number of dental skills that plaintiff did not. Test of Randall at 1389-90.

Randall stated that she cleaned her dental chair and the area around it because she felt a good assistant should do so. She testified that Blue told her it wasn’t in her job description and she was crazy for doing so. Id. at 1384. She also stated that she did not watch or listen to television nor did she read magazines and newspapers while attending to patients — such actions being totally unprofessional. Id. at 1385 and 1390. Furthermore, the court finds Randall was a cooperative employee, who volunteered to work when not required to do so, obviously a virtue in sharp contrast to that of Blue. Test, of Jones at 745.

59. In conclusion, Blue did not prove that she was entitled to a better rating than Randall or any other dental assistant. Blue’s testimony regarding her own job performance was filled with half-truths and severe misstatements of fact. Blue testified that she never turned the picture on her television on while attending to patients ii.e., listened only to the sound), yet a number of credible witnesses convincingly testified they had seen her do so. Blue *1269 testified that she was the only one asked to clean the base of her dental chair and that she did so. Again, the truth is the opposite —Blue did not clean her chair area nor was she the only assistant asked to do so. Id.

The evidence at bar overwhelmingly discredits Blue’s opinion that she was an outstanding employee. Even her prior annual performance ratings, by supervisors with whom she had no problems, belie that fact. While Blue may genuinely have believed she was the best dental assistant at DC-6, that opinion was shared by no one else. The court finds plaintiffs 1979 supervisory appraisal claim frivolous, vexatious, and without merit.

B. MPA 273-79

60.Again to reiterate and summarize, under the pre-1982 merit promotion process, applications for promotion were first screened by a personnel staffing specialist to insure that the candidate possessed the basic qualifications according to OPM guidelines. The applications of those who were declared eligible were then provided to the rating and ranking panel for a review to determine which of the candidates met the HQC specified in the job announcement. The applications of those meeting all HQC were then evaluated by the panel. A numerical score was ascribed to each application according to a rating guide and a roster of candidates was then prepared for the selecting official. The roster included only the best qualified candidates or those whose score was at least 85% of the highest score, up to a maximum of ten candidates.

The roster (DA Form 2600) provided to the selecting official included only the names, in alphabetical order, of those referred for interview. No scores, ranking, or race of any referee was indicated. The selecting official was generally required to interview all applicants, although in some special circumstances, selection could be based on a review OPF’s. Using the requirements of the position as a guide, s/he then selected the person best suited for the individual job. It is, of course, a necessary component of the selection process that the selecting official exercise his or her best judgment and discretion in selecting from among those referred. 97

61. Blue applied for a position as a Dental Assistant, GS-5, under MPA 273-79 on November 7,1979. This position was as an assistant to a board certified specialist in general dentistry. Some general understanding of the practice of dentistry at DC-6 is imperative before any informed determination can be made with respect to the merit promotion process under MPA 273-79. Thus, the court digresses to briefly discuss the operations at DC-6.

62. Extensive testimony was taken about dental specialists. In essence, a dentist may be certified as a specialist only after completing a two year program beyond the DDS degree and upon successful completion of a certification exam. The unrefuted professional testimony (contrary to plaintiff’s opinion) established that DC-6 was only a general practice clinic. 98 It had no certified specialists assigned to it who practiced their specialty, prior to COL. Soehren in 1983. Test, of Sykes at 1154-56 and 1167; Test, of Morgan at 1274-83. There was testimony that, on rare occasions, a reservist, who was a certified oral surgeon, practiced at the clinic for one or two week stints each summer, but that was the extent of any specialized practice until Soehren.

*1270 The dentists who were assigned to DC-6 practiced general dentistry with some very limited work in five (5) sub-specialty areas: pedodontics, 99 periodontics, 100 endodon-tics, 101 prosthodontics, 102 and exodontics. 103 Although each of these areas (with the exception of exodontics) constitutes a specialized form of dentistry, the practice in these functions was limited to very basic cases. Test, of Sykes at 1167-68 and 1174. Thus, while practicing general dentistry at DC-6, the dentist could begin to get some limited exposure to these areas in relatively routine cases. Any complex case was immediately sent to another dental clinic at Ft. Bragg where the specialty was routinely performed. As defense counsel aptly summarized this practice, “every area of dentistry, every specialty is on a continuum [with the general dentist on one end and the specialist on the other].” (Question of defense counsel at 1278). Indeed, general dentistry still is a specialty, Test, of Morgan at 1281, so perhaps it is best to look at DC-6 as performing mainly the following functions: examinations, x-ray, exodontia, and stabilizing emergency treatment.

68. MPA 273-79 was originally announced on October 29, 1979, and amended and re-announced on February 6, 1980. The job description states, in pertinent part:

Assists dentist, who has advanced training at the graduate level, in the more intricate aspects of restorative dentistry and the various specialty areas of dentistry. Assists the dentist in the treatment of patients requiring complex restorative and difficult oral surgery, prosthedontic, periodontic, endodontic or orthodontic treatment. This assist-anee is provided at the chairside and in the hospital operating room ... Assists dentist in oral surgery procedures to include extractions and periodontal and en-dodontic surgery. Assists the dentist in the management of patients under general anesthesia or intraveneous sedation, and in their immediate post-operative care....

DX210 at 2 (emphasis added).

The minimum standards of eligibility required two (2) years of general experience and one (1) year of specialized experience. The general experience involved some knowledge of the basic nursing, hospital, medical, and dental environment or of general clinical procedures with the specialized requirement mandating experience in dental assistance to restorative, surgical or prosthetic dentistry, x-ray work, or any combination of these appropriate to the position. Id.

Four (4) HQC were listed for the position, as amended:

1. Ability to deal with people of varied backgrounds and personalities.

2. Knowledge of equipment material [sic] used in oral surgery, pedodontic, periodontic, endodontic, prosthodontic, oral medicine and pathology at specialty level.

3. Knowledge of skill and dexterity in manipulating materials and instruments intra- and extra-orally to assist in general dentistry functions....

4. Knowledge of anatomy of hard and soft tissue landmarks about head and neck.

Id. at 4 (emphasis added).

64. Blue was rated qualified for the position, but not highly qualified, as the panel *1271 found her lacking HQC # 2. Id. at 5. Interestingly, Blue testified she did not know why she was not referred for the position until after she filed this lawsuit. Test, of Blue at 220-221.

65. Plaintiff contended she possessed the requisite knowledge and that she gained this information through experiences at DC-6 and St. Luke’s Hospital in New York. Since she had the mandated experience, Blue assumed that her failure to be referred must have been due to racial considerations. Unfortunately for plaintiff, she adduced not a scintilla of evidence supporting this conclusion.

First, Blue introduced absolutely no evidence regarding any discriminatory animus on the part of the four rating and ranking panel members. Indeed, the record is void of any mention of the panel members. True to form, Blue admitted on cross-examination that she did not know whether the panel discriminated against her. Id. at 218-221. Significantly, Blue acknowledged that thirty-five (35) of the forty-three (43) applicants for the position were similarly screened out because they lacked HQC #2. 104 See DX210 at 5-8. Most of the 35 were white. If anything, this evidence would tend to show a lack of racial animus on the part of the panel. Since plaintiff was not referred by the panel, and the panel determined the existence of the HQC, even if plaintiff was mistakenly denied credit for HQC # 2, plaintiffs claims of disparate treatment and retaliation must fail given the absence of any proof of intentional discrimination by the panel members.

66. This finding is buttressed by other factors as well. Blue claimed that she should have been credited for HQC #2 based upon her prior experiences. However, the evidence clearly established that she could not have gained experience at the specialty level while at DC-6 because there were no practicing specialists there prior to her applying for the position. The panel members, DENTAC dentists themselves, were apparently aware of this fact and thus ruled her not highly qualified.

Blue claimed that even if she had not received credible experience in oral surgery at DC-6, she had gained such experience during her tenure at St. Luke’s Hospital when she worked in the obstetrics/delivery room. Aside from the court’s prior difficulties with this experience, see finding of fact # 11, supra at 1240, the obvious problem with plaintiff’s argument is that surgical experience in obstetrics is vastly different from surgical experience in dentistry. MPA 273-79 required the latter specialized knowledge, not the former. As MJR. Sykes stated, “Oral surgery is just not related to OB. Oral surgeons don’t do OB ... they are at completely different ends.” Test, of Sykes at 1197.

Furthermore, assuming arguendo, that Blue should have received credit for oral surgery experience at the specialty level, the position required knowledge at that level in five additional areas, which neither St. Luke’s nor DC-6 provided. Blue admitted she had not worked with specialists in these areas and cited no other experience which would qualify her under HQC #2.

67.With respect to plaintiffs qualifications for MPA 273-79, Blue also claimed that staffing specialist Jean Byrd discriminated against her because Byrd, not the panel, improperly calculated her experience and letter of appreciation. The short answer to Blue’s argument is that the rating panel, not Byrd, determined plaintiff lacked HQC # 2. The staffing specialist screens only for minimum eligibility requirements and Blue was determined to be eligible. Staffing specialists do not actively participate in a rating panel’s review and discussion. 105

*1272 68. Furthermore, no credible evidence was introduced from which the court might even infer that Byrd was racially motivated to intervene or improperly deny plaintiff credit for her prior experience. Plaintiff attempted to show that Byrd was aware of plaintiffs knowledge of operating room protocol from plaintiff’s prior application for MPA 285-78, a dental assistant’s position in oral surgery. Byrd was the staffing specialist for that position and Blue at first did not receive credit for a HQC encompassing operating room and scrub technician functions. Upon complaint to Byrd, Blue’s record was re-reviewed by the panel and plaintiff was rated best qualified and referred. Blue was not selected for the position.

Defendant’s additional response to plaintiff’s contention was fourfold. First, even assuming a mistake was made by Byrd, that in and of itself is not probative of racial discrimination. Second, proceeding a step further and, assuming arguendo, Byrd discriminated against plaintiff by somehow disallowing credit for her oral surgery experience, that does not change the fact that Blue did not have sufficient experience at any of the other specialty areas.

Third, panel member Dr. George Cohen’s explanation of Blue’s re-review in 285-78 puts to rest any notion that Byrd discriminated against the plaintiff. Dr. Cohen testified that on initial review the panel determined that Blue had no experience in oral surgery, only general dentistry, thus, she failed to meet the HQC. Test, of Cohen at 1431. Upon request to re-evaluate the plaintiff, the panel reviewed Blue’s OPF and decided, despite significant reservations, to give the plaintiff credit for her New York experience. Cohen stated, quite frankly, that the panel did not believe plaintiff’s SF-171 in her OPF listing her job duties and experience at St. Luke’s Hospital. Id. at 1437. However, the panel decided to accept plaintiff's OPF at face value for rating purposes, and let the selecting official make his determination of her qualifications.

Thus, it was the panel’s decision to accept plaintiff’s SF-171 the second time around, despite serious concerns regarding its veracity, which allowed plaintiff to be considered under 285-78. If Byrd was aware of those reservations, neither she nor the 273-79 panel were required to give Blue the same leniency as was given by the second panel review in 285-78.

Finally, as to plaintiff's claim that Byrd discriminatorily denied her additional credit for a fifth letter of appreciation, defendant argues and the court agrees that (1) credit for the letter was irrelevant in plaintiff’s non-referral for 273-79 since that credit goes only toward points in her final rating and Blue never made it that far, having failed to meet HQC # 2, and (2) the “Awards” credit for four letters was correct, since credit could only be given for “official” letters of appreciation and commendation and Blue’s fifth letter in her OPF was clearly “unofficial.” See Finding of Fact # 13, supra at 61.

69. In addition to all of the evidence above, defendant introduced testimony through COL. Morgan, COL. Jacobson and MJR. Sykes, that Joan Brocki, the white selectee under 273-79, was a very qualified applicant for the position. 106 Test of Jacob-sen at 1426-27; Test, of Sykes at 1182-87.

Morgan, the selecting official for MPA 273-79, testified that he had Jacobsen, a General Dentistry Specialist, compile a list of expert questions which he asked of all applicants during their interview with both he and Jacobsen. Based on Jacobsen’s professional recommendation, Morgan selected Brocki for the position. Morgan’s statement of his reasons for the selection is set forth in DX210 at 178:

*1273 In my opinion, [Brocki] has the best qualifications for the job. During the interview this candidate displayed the most interest and initiative for the job.

Sykes also testified that he knew the abilities of Brocki and Blue from having worked with both, and that were he the selecting official, and had Blue been referred for consideration, he would have selected Brocki over Blue. Test, of Sykes at 1184.

With regard to the relative qualifications of Brocki and Blue, plaintiff initially testified on direct examination that she was “more qualified than Joan Brocki ... [b]ecause I had more experience.” Test, of Blue at 26. However, on cross-examination, Blue changed her testimony by stating she didn’t know Brocki and didn’t know her qualifications. Id. at 217.

From the above evidence, the court finds that even if Blue had been referred for 273-79, it is extraordinarily unlikely she would have been selected for the position and her non-selection would have been predicated on legitimate, non-discriminatory grounds.

70.In a further attempt to prove pretext, Blue claimed that Morgan, the selecting official, selected very few blacks during his tenure as DENTAC Commander and that he was a major conspirator against her. In support of this assertion, she offered only brief, uncorroborated conjecture and speculation.

Morgan, on the other hand, testified that of the fourteen (14) times he had the opportunity to select a black applicant for promotion from a DA Form 2600, he selected a black candidate on six (6) occasions. Test, of Morgan at 1287. 107 In addition, the record is void of any evidence indicating Morgan ever requested, ordered, or coerced any NCOIC or OIC into taking any action against Blue — discriminatory or non-discriminatory in nature.

71. No statistical presentation was made by either party with respect to any claim regarding MPA 273-79.

C. MPA 303-79

72. Blue applied for a position as a Dental Assistant, GS-5, under MPA 303-79 on November 26, 1979. This position was as an assistant in oral surgery. The job description states, in pertinent part:

Assists dentist in major oral and maxil-lofacial surgical procedures performed in hospital operating room and in dental clinic_ Assists oral surgeon while patient is under general anesthesia or intra-veneous sedation in operations.... Serves as first surgical assistant.

DX205 at 3 (emphasis added). The court finds the full job description contained in DX205 accurate and detailed.

The minimum standards of eligibility for this position were substantially the same as those required under MPA 273-79. Id. Six (6) HQC were listed for the position:

1. Must be knowledgeable of medical terminology associated in all oral surgery practice.

2. Must have had previous experience in assisting oral surgeon.

3. Must have knowledge of operating room protocol and be able to function as an operating room scrub technician.

4. Must be able to physically endure up to six hours of continuous assisting in an operating room.

5. Must be thoroughly familiar with monitoring sterilization technicians during surgical procedures; in addition, must assure that surgical instruments are properly cleansed and prepared for sterilization.

6. Must be familiar with maintenance and operation of dental x-ray equipment.

Id. at 4. The court finds the HQC job-related and detailed.

73. Initially, Blue was rated qualified for the position, but not meeting HQC # 3. Blue complained to Jean Byrd, once again *1274 the Staffing Specialist for this MPA, and told her that she had operating room experience, as reflected in her OPF. As was the case in MPA 285-78, Blue’s application was re-rated on December 10, 1979, and found to meet all the HQC. No member of the Rating and Ranking Panel for this MPA testified at trial and it is unclear what prompted the panel to change its initial decision.

74. Despite the fact that Blue met all the HQC on reconsideration, plaintiff was not referred by the panel for an interview because her final rating of 72.42 was not within 85% of the top score received by a candidate, 86.95. Id. at 10-11. Thus, application of the 85% Rule barred her from further consideration by the selecting official.

75. Plaintiff contends that she was discriminated against by virtue of the alleged adverse impact of the 85% Rule. She also contends that she would have scored high enough to be referred for interview but for the 1979 discriminatory appraisal by Vincent and Paquette. Plaintiff further claims that had she been referred, she would have been selected because she was the most qualified for the job. And, finally, Blue alleges that she was denied promotion because she was harassed and retaliated against due to her attempts to complain about defendant’s discriminatory practices.

76. Plaintiff’s claim of adverse impact concerning the 85% Rule was dismissed by the court, upon motion of the defendant, at the close of plaintiff’s evidence, pursuant to Fed.R.Civ.P. 41(b). Orders of May 16, 1984, at 3-4 and November 2, 1984. The basis for this ruling was quite simple— Blue failed to present any meaningful evidence that the 85% Rule affected blacks any differently than it did whites.

First, Blue incredibly presented absolutely no statistical evidence to support her claim of disparate impact. Plaintiffs’ statistical expert, Dr. Alan Parrow, did not testify during Blue’s case despite being listed as a witness in plaintiff’s Pre-Trial Order of Witnesses, filed April 3, 1984. Plaintiffs attempted to argue to the court that Parrow’s testimony in future cases, e.g., Geraldine Ballew, should be retrospectively applied to Blue’s claims, but the court denied that motion at trial, relying on its oral rulings from earlier in the proceeding to the effect that testimony and exhibits could be used prospectively, (i.e., applied forward from cases already heard to the case then pending), but not retrospectively, in order to achieve some semblance of finality for each claim heard at the conclusion of testimony received on that claim. See Order of May 16, 1984, at 3. See also court’s discussion with counsel at 572-592. Thus, any expert testimony subsequently heard with regard to the “85% Rule” issue during the claims of Geraldine Ballew was deemed inadmissible and will not now be considered in the claim at bar. 108

77. Plaintiff also attempted to introduce an exhibit, PX31(a), which purports to establish the race of all civilian employees at Ft. Bragg. Plaintiffs’ lead counsel suggested to the court that he or the court could take the race codes on 31(a) and use them to identify all those adversely impacted by the 85% Rule as listed in a series of DENTAC MPA’s. 109 The result would al *1275 legedly show how the 85% Rule impacted adversely against highly qualified black applicants. Problems with this proffer were numerous.

As an initial consideration, defendant objected to PX31(a), a document allegedly prepared by Dr. Parrow from pretrial data provided by the defendant during discovery. 110 Defendant’s objection was one of authenticity and plaintiffs were well aware of this long-standing objection even before trial of the case began in January of 1984. Since the document was prepared by Parrow, see Admission by plaintiffs counsel at 572, it was incumbent upon plaintiff to produce Parrow to meet the defendant’s objection. Parrow did not testify, no witness associated with the document in Blue’s case testified, thus, no foundation was ever established for its admissibility. Defendant’s objection to PX31(a) was and is therefore SUSTAINED.

Assuming arguendo, that 31(a) was admitted, plaintiff produced no evidence indicating even the numbers - of the MPA’s involved in DENTAC where the 85% Rule barred highly qualified applicants from being referred, let alone evidence of the names of persons not referred under those MPA’s. Thus, even if 31(a) was admitted, the court had no further documentary or anecdotal evidence upon which to base any statistical inquiry of its own to determine the possibility of adverse impact under the 85% Rule. 111

78. The only anecdotal evidence to support plaintiff's adverse impact claim came briefly from the plaintiff and from plain-Dickerson. 112 Plaintiff correctly testified that she was denied referral in 303-79 due to application of the 85% Rule. Blue then stated, in conclusory fashion, that this non-referral meant, ipso facto, that the Rule adversely impacted upon her and other blacks due to their race. This was the extent of Blue’s testimony on the 85% Rule.

As for Dickerson, he testified at trial, that upon review of preliminary data gathered by Recruitment and Placement at CPO in 1981 and early 1982, his office had initially concluded that the 85% Rule “may” have had an adverse impact on minority candidates. Test, of Dickerson at 526-29. Plaintiff subjected Dickerson, a hostile witness, to essentially strenuous cross-examination on this topic, yet Dickerson remained firm in his conviction that (1) the data reviewed was preliminary; (2) the conclusion arrived at was preliminary; and (3) the conclusion itself was, at best, tenuous. Plaintiff attempted to impeach Dickerson with his deposition, but that effort failed because his statement there in June of 1982, was “[w]e have identified certain provisions [the 85% Rule and Top Ten Rule] of the union contract, in some of the preliminary work that we have done, that indicates there may have been some adverse impact.” Deposition of Dickerson at 24-25 (emphasis added). This was the extent of Dickerson’s testimony on the 85% Rule and the end of plaintiff’s evidence on the issue. 113

*1276 Although the court does not fully credit all of Dickerson’s testimony, finding him unnecessarily evasive and hostile at certain points, there is nothing in the record that causes the court to disbelieve his testimony on the 85% Rule. Plaintiff did not seek to admit any additional proof on the issue or even to suggest to the court that CPO had final data or a study indicating adverse impact under the Rule. If such evidence existed, plaintiff had ample opportunity to discover and introduce it. Dickerson’s deposition was taken six months prior to trial. Plaintiffs never filed a discovery motion with the court indicating defendant was withholding documentary evidence on this issue. No witness testified in contradiction to Dickerson. The court has even independently reviewed all of the depositions filed in this case and finds no statement contra-verting Dickerson’s testimony. See, e.g., January 26, 1982, Deposition of Jerry Wayne Horne at 57-59.

Thus, when all is said and done, plaintiff’s adverse impact claim rests solely on plaintiff’s conclusory allegation of discriminatory impact and Dickerson’s statement that the 85% Rule “may” have impacted adversely, predicated on a review of preliminary data at CPO — data not before the court. 114 To suggest that this evidence even comes close to presenting a prima facie case of disparate impact is ludicrous.

79.As for plaintiff’s 1979 supervisory appraisal argument, the court has previously issued its findings of fact on this issue, supra, and those findings are incorporated by reference for this claim as well. The court finds that the appraisal was not the product of racial discrimination and, therefore, Blue’s contention that she would have overcome the “85% Rule” hurdle, but for the appraisal, must be rejected. 115

80. Plaintiff’s third argument under 303-79 was that if she had been referred, she would have been selected for the position. Of course, this contention is meaningless since plaintiff was not improperly denied referral by the Rating and Ranking Panel. Nonetheless, assuming plaintiff was referred, the court finds no basis to assume plaintiff would have been selected for the position. Other than Blue’s own opinion that she was best qualified, Blue offered only the testimony of Ballew to support her claim. Ballew’s testimony on this issue consisted of the conclusory statement that Blue was the best dental assistant in DC-6 in “oral surgery.” The court, for reasons hertofore detailed, finds this testimony incredible and, even if viewed as credible, wholly insufficient to support plaintiff’s contention.

Defendant, on the other hand, offered the testimony of numerous witnesses establishing that Blue was something considerably less than the best dental assistant, even in exodontia, at DC-6. To summarize, defendant’s witnesses opined that Blue had the ability to do a good job, but rarely did so because of her insubordinate attitude, preoccupation with going “by the book,” her attempts to evade work, and generally her confrontative personality. To borrow the words of a witness in the Mattiebelle Harris case, Blue’s supervisors, co-employees, and the dentists at DC-6 were all in agreement that she was not a “cherished and valued employee that a boss would fall on his sword for in order to keep.”

81. In contrast to Blue’s lack of experience in oral surgery, the selectee in 303-79, Ginette Moreau (white), had extensive experience working with a board certified oral surgeon. Both COL. Morgan, the selecting official, and MJR. Sykes testified *1277 that Moreau had assisted an oral surgeon, Dr. Allwine, for at least three years, and that she had a reputation for excellence among the dentists for whom she worked. Test, of Morgan at 1289-98; Test of Sykes at 1174-81; DX205 at 103. As in the case of MPA 273-79, Sykes testified that between Moreau and Blue, had he been the selecting official and had Blue been referred, he would have chosen Moreau because of her greater experience and qualifications. Id. at 1181.

Ironically, just as Blue testified with regard to 273-79 selectee Joan Brocki, she testified on direct examination that, having reviewed Moreau’s qualifications, she was better qualified for the position than Mor-eau. Test, of Blue at 41-42. Yet, on cross-examination Blue conceded that she really had no knowledge of Moreau’s qualifications and experience — although incredibly she still contended she was better qualified. 116 Id. at 222-27. It is difficult for the court to understand how Blue could claim to be the best qualified for the position when she had not the foggiest notion of the skills of the selectee.

82. Finally, with respect to plaintiff’s retaliation argument, Blue traces this claim back to the actions of LTC Cressler, SSG Ramos, Vincent, and COL. Paquette. The court’s prior findings with regard to the actions of these individuals are incorporated by reference into plaintiff’s 303-79 claim. The court finds plaintiff was not retaliated against by any of these officers.

Blue claims that evidence of defendant’s retaliation can be found by the fact that she was not placed on a regular rotation schedule at DC-6 by Cressler, 117 the proposed letter of reprimand by Ramos, the 1979 “low” supervisory appraisal by Vincent, the counselling imposed upon her due to allegations that she illegally and frequently parked in the DC-6 fire zone, and other unidentified incidents of harassment. See Plaintiff’s November 19, 1984, Proposed Findings of Fact and Conclusions of Law for Sandra Blue at 22-23. The short answer to plaintiff’s contention is that plaintiff clearly was at fault in all of the above disciplinary incidents and the 1979 evaluation was a legitimate appraisal of her productivity. Thus, these examples show absolutely no evidence of harassment.

Furthermore, disregarding the 1979 appraisal, already commented upon at length by the court, even if all of the other incidents proved true, they had no effect on plaintiff’s 303-79 promotion attempt. Plaintiff was denied referral due to a facially, and so far as the court can determine from the evidence, factually neutral promotion standard — the 85% Rule. There is no evidence the Rating and Ranking Panel retaliated against the plaintiff in compiling her score. Indeed, as with 273-79, the record is void of any mention of the *1278 panel or its members. 118 Accordingly, the court finds no evidence that alleged retaliation or harassment by the defendant played any role in plaintiff’s non-referral for MPA 303-79.

83. In sum, the anecdotal and documentary evidence in this case utterly fails to support plaintiffs claims that she was subjected to intentional race discrimination, harassed for exercising her Title VII rights, or adversely impacted by defendant’s employment practices. Rather, the court finds plaintiff was a witness totally unworthy of belief and one who brought numerous charges of race discrimination against the defendant, often simply because she felt she should not be disciplined for failure to perform her duties properly and for being insubordinate, or denied promotion even when unqualified for the postion.

V. CONCLUSIONS OF LAW FOR PLAINTIFF SANDRA BLUE’S CLAIMS OF DISCRIMINATION 119

1. This action was instituted by plaintiffs under Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e-16, with the court having jurisdiction over the litigation pursuant to 28 U.S.C. § 1343.

2. Likewise, the court entertains jurisdiction over the parties to the action and all conditions precedent to the maintenance of the litigation, have been met.

For ease of analysis, the court's conclusions of law will issue in the following order: plaintiff’s disparate treatment claims, disparate impact claim, excessive subjectivity claim, retaliation claim, and finally, an analysis of Blue’s “affirmative action” preference argument.

A. Disparate Treatment Claims

1. General Framework for Analysis

3. The Title VII provisions establishing employment discrimination liability are Sections 703(a)(1) and 703(a)(2), which state:

It shall be an unlawful employment practice for an employer—

(1) to fail or refuse to hire or to discharge any individual, or otherwise to discriminate against any individual, with respect to his compensation, terms, conditions, or privileges of employment, because of such individual’s race, color, religion, sex, or national origin; or

(2) to limit, segregate, or classify his employees or applicants for employment in any way which would deprive or tend to deprive any individual of employment opportunities or otherwise adversely affect his status as an employee, because of such individual’s race, color, religion, sex, or national origin.

42 U.S.C. § 2000e-2(a)(1982). From this statute, the Supreme Court has recognized two basic theories of recovery: disparate treatment and disparate impact. See Palmer v. Shultz, 815 F.2d 84, 90 (D.C.Cir.1987); Goodman v. Lukens Steel Co., 777 F.2d at 130.

4. In a disparate treatment case, § 703(a)(1), the plaintiff attempts to demonstrate that he is the victim of intentional, often covert, discrimination. “ ‘Disparate treatment' ... is the most easily understood type of discrimination. The employer simply treats some people less favorably than others because of their race, color, religion, sex, or national origin....” International Brotherhood of Teamsters v. United States, 431 U.S. 324, 335 n.15, 97 S.Ct. 1843, 1854 n.15, 52 L.Ed. 2d 396 (1977). Proof of discriminatory intent is critical. Id. The ultimate factual inquiry in this type of case is whether the defendant intentionally discriminated against the plaintiff, United States Service Board of Governors v. Aikens, 460 U.S. 711, 715, 103 S.Ct. 1478, 1482, 75 L.Ed.2d 403 (1983), with the plaintiff having the burden of establishing proof from which *1279 the factfinder can infer — if the conduct remains unexplained — that more likely than not, defendant’s action was “based on a discriminatory criterion illegal under the Act.” Furnco Construction Corp. v. Waters, 438 U.S. 567, 576, 98 S.Ct. 2943, 2949, 57 L.Ed.2d 957 (1978). See also Texas Department of Community Affairs v. Burdine, 450 U.S. 248, 253, 101 S.Ct. 1089, 1093, 67 L.Ed.2d 207 (1981). In other words, to establish employment discrimination on the basis of disparate treatment, it must be shown that the employer bore a racially discriminatory animus against the employee, and that this animus manifested itself in some challenged action, whether it be dismissal, failure to hire, or failure to promote. Lewis v. University of Pittsburgh, 725 F.2d 910, 914 (3d Cir.1983), cert. denied, 469 U.S. 892, 105 S.Ct. 266, 83 L.Ed.2d 202 (1984).

On the other hand, in a disparate impact case, § 703(a)(2), the plaintiff attempts to demonstrate that a neutral rule, fair on its face and objectively applied, has a significantly greater effect on persons protected under Title VII than on the majority group. Griggs v. Duke Power Co., 401 U.S. 424, 91 S.Ct. 849, 28 L.Ed.2d 158 (1971). Disparate impact analysis is directed at the “consequences of employment practices, not simply the motivation.” Id. at 432, 91 S.Ct. at 854. Thus, unlike disparate treatment, proof of discriminatory intent is not required under disparate impact theory. The ultimate factual inquiry under impact analysis is whether the challenged criterion has a disproportionate impact on a protected class which cannot be excused by business necessity. Viewed in this light, Griggs and its progeny stand for the proposition that Title VII prohibits any conduct which operates as the functional equivalent of intentional discrimination. See International Brotherhood of Teamsters, supra.

5. The basic analytical framework governing claims of disparate treatment was originally set forth in the seminal case of McDonnell Douglas Corp. v. Green, supra. This pronouncement was subsequently elaborated upon and- clarified in Furnco, supra; Burdine, supra; and Aikens, supra. These cases suggest several different ways in which a plaintiff may show, and a court may find, liability for disparate treatment under Title VII.

First, a plaintiff may prove the discriminatory intent of the defendant through direct evidence of discriminiation, e.g., by introducing invidious statements of the defendant. Holmes v. Bevilacqua, 794 F.2d at 196; Moore v. City of Charlotte, 754 F.2d 1100, 1105 (4th Cir.1985), cert. denied, 472 U.S. 1021, 105 S.Ct. 3489, 87 L.Ed.2d 623 (1985); EEOC v. Maxwell Co., 726 F.2d 282 (6th Cir.1984). If the fact finder believes the direct evidence presented by the plaintiff, a presumption is created that the adverse employment action taken against the plaintiff was a product of that discriminatory intent. Blalock v. Metals Trades, Inc., 775 F.2d 703, 707 (6th Cir.1985); Hill v. Seaboard Coastline Railroad Co., 767 F.2d 771, 775 (11th Cir.1985); Bell v. Birmingham Linen Service, 715 F.2d 1552, 1556-57 (11th Cir.1983), cert. denied, 467 U.S. 1204, 104 S.Ct. 2385, 81 L.Ed.2d 344 (1984). 120 At this point, the *1280 burden shifts to the defendant to prove by a preponderance of the evidence, that the adverse action would have been taken even in the absence of a discriminatory motive. Bell citing the standard established in Mt. Healthy School District Board of Education v. Doyle, 429 U.S. 274, 97 S.Ct. 568, 50 L.Ed.2d 471 (1977). See also Terbovitz v. Fiscal Court of Adair County, Ky., 825 F.2d 111, 114-115 (6th Cir.1987); Fields v. Clark University, 817 F.2d 931, 935-37 (1st Cir.1987); Miles v. M.N.C. Corp., 750 F.2d 867, 875-76 (11th Cir.1985).

Since discriminatory intent is seldom capable of proof by direct evidence, Warren v. Halstead Industries, Inc., 802 F.2d 746, 752 (4th Cir.1986), indirect or circumstantial evidence can also be used to prove state of mind. Aikens, 460 U.S. at 714 n. 3, 103 S.Ct. at 1481 n. 3; Conway v. Electro Switch Corp., 825 F.2d 593 (1st Cir.1987) (“[i]ndeed, discrimination can be of such a subtle, insidious character that a plaintiff may only be able to offer circumstantial evidence to buttress his or her claim.”); Graefenhain v. Pabst Brewing Co., 827 F.2d 13, 20 (7th Cir.1987). Accordingly, plaintiffs second method of establishing a prima facie case is through the use of indirect evidence whose cumulative probative force, apart from the operation of any presumption, suffices under the controlling standard to support, as a reasonable probability, the inference that but for the plaintiffs race he would not have suffered an adverse employment action. Holmes v. Bevilacqua, 794 F.2d at 146; Lovelace v. Sherwin-Williams Co., 681 F.2d 230, 242 (4th Cir.1982). The Supreme Court has provided explicit guidance for the order of proof and the allocation of burdens in such cases:

First, the plaintiff has the burden of proving by the preponderance of the evidence, a prima facie case of discrimination. Second, if the plaintiff succeeds in proving the prima facie case, the burden shifts to the defendant to articulate some legitimate, non-discriminatory reason for the employee’s rejection. Third, should the defendant carry this burden, the plaintiff must then have an opportunity to prove by the preponderance of the evidence that the legitimate reasons offered by the defendant were not its true reasons but were a pretext for discrimination. 121

Burdine, 450 U.S. at 252-53, 101 S.Ct. at 1093 citing McDonnell Douglas, 411 U.S. at 802-04, 93 S.Ct. at 1824-25. See also Moore v. City of Charlotte, 754 F.2d at 1105. 122

The burden of going forward and establishing a prima facie case is not a *1281 heavy one. Young v. Lehman, 748 F.2d 194, 197 (4th Cir.1984), cert. denied, 471 U.S. 1061, 105 S.Ct. 2126, 85 L.Ed.2d 489 (1985). To satisfy the requirement, plaintiff need only raise an inference that the defendant acted with discriminatory intent, i.e., plaintiff’s adverse employment action occurred “under conditions which, more likely than not, were based upon impermissible racial considerations.” Gairola v. Commonwealth of Virginia Department of General Services, 753 F.2d 1281, 1286 (4th Cir.1985); Young v. Lehman, 748 F.2d at 196.

Various circumstances may give rise to this inference of discrimination. See Eastland v. Tennessee Valley Authority, 704 F.2d 613, 618 (11th Cir.1983), cert. denied, 465 U.S. 1066, 104 S.Ct. 1415, 79 L.Ed.2d 741 (1984). Evidence of irregular or suspect employment procedures may suffice. 748 F.2d at 147. Certainly, evidence of a general pattern of racial discrimination within the defendant’s workforce will meet this standard. Moore v. City of Charlotte, supra; Warren v. Halstead Industries, Inc., 802 F.2d at 753. In addition, an inference of discrimination adequate to create a prima facie case of disparate treatment can be established by meaningful statistical evidence or by a showing that decisions made by the defendant depended largely on excessively subjective factors. Palmer v. Shultz, 662 F.Supp. 1551, 1568-69 (D.D.C.1987). See also fn. 131 and Conclusions of Law 38-47 infra.

More frequently, however, plaintiffs establish their prima facie case using the Supreme Court’s model of motivational inferences in McDonnell Douglas, 411 U.S. at 802, 93 S.Ct. at 1824. This formula, which if met eliminates the most common non-discriminatory reasons for any disparate treatment, requires a plaintiff to show: (1) that he is a member of a protected class; (2) that he applied and was qualified for the job; (3) that though qualified, he was rejected, and (4) that after his rejection, the position remained open and the employer continued to seek applications from persons of plaintiff’s qualifications. Id. See also Holmes v. Bevilacqua, 794 F.2d at 146.

As the Court noted in McDonnell Douglas, “[t]he facts necessarily will vary in Title VII cases” and, therefore, the elements outlined in the Court’s four-part test for establishing a prima facie case of disparate treatment will vary according to the facts in each case. Although McDonnell Douglas had to do with hiring discrimination, an adapted burden of production has been imposed on plaintiffs seeking to establish prima facie cases of discrimination in promotions, job assignments, compensation and training. See, e.g., cases cited in B. Schlei and P. Grossman, Employment Discrimination Law 36, 1317-1321 (1983). The McDonnell Douglas test is not meant to be applied in a rigid, mechanized or ritualistic manner; it was never intended to be a Procrustean bed within which all disparate treatment cases must be forced to lie. See Furnco, 438 U.S. at 577, 98 S.Ct. at 2949.

The McDonnell Douglas method of establishing a prima facie case addresses two evidentiary problems common to most Title VII cases: (1) as stated earlier, direct evidence of discriminatory intent is always difficult to find and often non-existent; and (2) the employer enjoys greater access to proof of its reasons for its own employment decisions. See Loeb v. Textron, 600 F.2d 1003, 1014 (1st Cir.1979). McDonnell Douglas therefore allows the plaintiff to shift the burden of production from himself to the defendant once plaintiff negates “the two most common legitimate reasons” for an employment decision: lack of qualifications or absence of a job vacancy. International Brotherhood of Teamsters, 431 U.S. at 358 n. 44, 97 S.Ct. at 1866 n. 44. See also Bell v. Birmingham Linen Service, 715 F.2d at 1556. 123

*1282 Accordingly, proof of the McDonnell Douglas elements establishes a prima facie case of illegal motivation. These objective elements create “an inference of discrimination because we presume these acts, if otherwise unexplained, are more likely than not based on the consideration of impermissible factors.” Furnco, 438 U.S. at 577, 98 S.Ct. at 2949. This showing, of course, is not conclusive proof of discriminatory motive. If the plaintiff establishes these elements, the burden of production then shifts to the defendant to articulate some legitimate non-discriminatory reason justifying the employment action. However, failure of the defendant to articulate a reason that is both legitimate and non-discriminatory will result in a judgment, as a matter of law, for the plaintiff. 124 Burdine, 450 U.S. at 254, 101 S.Ct. at 1094. This is because when “all legitimate reasons for rejecting an applicant have been eliminated [or no reasons have been articulated] ... it is more likely than not the employer, whom we generally assume acts with some reason, based his decision on an impermissible consideration.” Furnco, supra. 125

*1283 6. To rebut the presumption created by plaintiff’s prima facie circumstantial case, the defendant’s burden is to “articulate some legitimate nondiscriminatory reason for the employee’s rejection.” McDonnell Douglas, 411 U.S. at 802, 93 S.Ct. at 1824. This description of the defendant’s burden raises two questions. First, how much evidence must the defendant introduce in order to meet his burden of articulating a nondiscriminatory reason? Second, what sort of reason will the court recognize as a legitimate nondiscriminatory one?

The problem of how much the defendant must show was substantially resolved by the Court’s decision in Burdine, supra. Burdine made explicit several points which were implicit in earlier disparate treatment cases. First, as previously noted, the Court made clear that the plaintiff’s prima facie case under the four-part McDonnell Douglas test creates a presumption, not simply an inference, of intentional discrimination by the defendant. 450 U.S. at 254-55, 101 S.Ct. at 1094-95 n. 7. Second, the effect of this presumption is to shift the burden of production, not the burden of persuasion, to the defendant. Id. “The defendant need not persuade the court that it was actually motivated by the proffered reasons,” id. at 254, 101 S.Ct. at 1094, nor present clear and convincing evidence of non-discrimination, Felton v. Trustees of the California State Universities and Colleges, 708 F.2d 1507, 1508 (9th Cir.1983), but simply must present evidence raising a “genuine issue of fact” as to whether “the plaintiff was rejected, or someone else preferred, for a legitimate non-discriminatory reason.” Burdine supra; Aikens, 460 U.S. at 714, 103 S.Ct. at 1481. Third, the reason articulated must contradict the prima facie case. It must be clear, specific, legitimate and articulated through the introduction of admissible evidence. 450 U.S. at 254-55, 101 S.Ct. at 1094.

Thus, the defendant’s burden of production is met by producing sufficient evidence to undercut the presumption of discrimination even without ultimately persuading the court of the absence of any discriminatory motive. In the Court’s view, this burden of production both requires the defendant to meet the plaintiff’s prima facie case as well as providing the plaintiff a fair opportunity for rebuttal. Id. at 255-56, 101 S.Ct. at 1095. The amount or quality of the defendant’s evidence must be “evaluated by the extent to which it fulfills these [two] functions.” Id. See Furnish, A Path Through the Maze: Disparate Impact and Disparate Treatment Under Title VII of the Civil Rights Act of 196b After Beazer and Burdine, 23 B.C.L.Rev. 419, 433-35 (1982).

Clearly then, the Court’s description of the amount of evidence the defendant is required to produce at this second stage indicates that one of the goals of the Bur-dine standard is to provide plaintiffs with discovery, sufficiently detailed, so as to make it possible for them to prove illicit intent. The defendant cannot simply rest on conclusory allegations in the pleadings or argument of counsel. An articulation not admitted into evidence does not suffice. 450 U.S. at 255 n. 9, 101 S.Ct. at 1094 n. 9. Stage two is thus designed “to frame the factual issue with sufficient clarity so that the plaintiff will have a full and fair opportunity to demonstrate pretext.” Id. at 255-56, 101 S.Ct. at 1095. 126

*1284 In sum, although an employer need not prove that legal reasons actually motivated its decision, it must do considerably more than simply plead the existence of a legitimate reason. Left unresolved after Burdine, however, with respect to the quantum of proof required, is whether the defendant’s burden of production only requires introducing evidence of the existence of the reason or whether the defendant’s burden also carries with it the necessity of proving the existence of the reason. See 49 Mo.L.Rev. at 17. Agreeing with the cogent law review article just cited, this court holds that the defendant’s burden is to establish that the reason asserted actually exists. “It is only by convincing the trier of fact that the reason exists that the defendant meets its burden of going forward on the ultimate issue of motivation.” Id. For the following reasons, the court finds this intermediate burden fully consistent with the established principle that plaintiff bears the ultimate burden of persuasion on the issue of motivation.

The ultimate factual issue in disparate treatment cases is the defendant’s motivation. Intermediate factual issues may arise and they may create inferences that go to the ultimate issue. 127 To create a presumption of illegal motivation, a plaintiff must establish the factual existence of objective elements from which the presumption of illegal motive can be deduced. Similarly, since a defendant must create an inference of legal motive, it should be necessary for the defendant to establish the objective facts from which such motivation can be inferred. 36 Mercer L.Rev. at 862-63 n. 36. If the factfinder does not believe that the reason articulated actually exists, or that the defendant believed that it existed, DeAnda v. St. Joseph Hospital, 671 F.2d 850, 854 (5th Cir.1982), there is no premise from which the factfinder can infer that the articulated reason, rather than the proscribed criteria, motivated the employment decision. 128 Thus, the plaintiff's prima facie showing of illegal motivation has not been met and refuted by a legally sufficient counter-inference. See Lewis v. Smith, 731 F.2d 1535 (11th Cir.1984); Thorne v. City of El Segundo, 726 F.2d 459 (9th Cir.1983); Sylvester v. Callon Energy Service, Inc., 724 F.2d 1210 (5th Cir.1984); Lanphear v. Prokop, 703 F.2d 1311 (D.C.Cir.1983); Mohammed v. Callaway, 698 F.2d 395 (10th Cir.1983); Miller v. WFLI Radio, 687 F.2d 136 (6th Cir.1982). In sum, only by concluding that the defendant’s proferred reason exists, or that the defendant believed it existed, can a trial court infer that the reason, rather than the illegal factor, motivated the particular employment action. 49 Mo.L.Rev. at 39; 36 Mercer L.Rev. at 862-63.

*1285 Turning to the second issue left open after Burdine, the court holds that for the employer’s reason to be deemed sufficient to overcome the presumption against him, it must have a rational connection with the business goal of securing a competent and trustworthy work force. 23 B.C.L.Rev. at 437. Except in rare instances (see fn. 130, infra, at 1285-86), the defendant must produce evidence of a legitimate business-related reason which could explain behavior that otherwise appears discriminatory. Id. See Jennings v. Tinley Park Community Consolidated School District No. 146, 796 F.2d 962 (7th Cir.1986), cert. denied, — U.S. -, 107 S.Ct. 1895, 95 L.Ed.2d 502 (1987); Abrams v. Baylor College of Medicine, 581 F.Supp. 1570 (S.D.Tex.1984), aff'd. in relevant part, 805 F.2d 528 (5th Cir.1986).

At a minimum, to be legitimate, a reason must be legal. On the other hand, a reason is not deprived of its legitimacy merely because it is not necessary. A wide gulf exists between legality and necessity. 36 Mercer L.Rev. at 877. Since the ultimate issue in disparate treatment cases is the defendant’s motivation, the defendant’s articulated reason should be examined to determine whether it can be inferred from the existence of the reason that the employer was properly motivated. Id. A reason cannot be legitimate if it fails to carry a defendant’s evidentiary burden to meet and refute plaintiff’s prima facie case. That is to say, a reason is legitimate only if it is capable of supporting an inference of legal motivation in the context of the case in which it is being alleged. If the reason articulated does not permit an inference of proper motivation to be drawn, or if drawn, the inference is so anemic that it does not refute the presumption in plaintiff’s favor, it must be concluded that the reason lacks legitimacy. Id. See also 49 Mo.L.Rev. at 20 n. 10 (“A reason totally divorced from reasonable employer concerns could not carry a factual inference that it was the articulated reason rather than the illegal concerns that motivated the employer’s decision.”). Legitimacy is, therefore, a legal term of art, sufficiently flexible to be judged in light of permissible motivational inferences. 36 Mercer L.Rev. at 877.

Thus, except in rare instances, a reason will be deemed legitimate only if it has a rational relationship to bona fide business concerns. In a phrase, the reason must have business rationality. Id. at 880. Reasons that are arbitrary and irrational are not legitimate as they fail to support any inference of legal motivation. See Brown v. Tennessee, 693 F.2d 600, 605 (6th Cir.1982); United States v. City of Miami, 614 F.2d 1322, 1345-46 (5th Cir.1980), modified, 664 F.2d 435 (5th Cir.1981). Such reasons would not be used by a reasonable businessperson similarly situated and, therefore, it cannot be inferred with any strength that the proferred reasons, in fact, motivated the employer’s decision. 129 Arbitrary reasons leave the plaintiff’s presumption of illegal motivation unrefuted. 36 Mercer L.Rev. at 878.

In sum, a defendant need not prove the reason articulated for its treatment of the plaintiff was “necessary” or even directly related to actual job performance, but the reason must be legal and not so devoid of rationality that it fails to support an inference of legal motivation. The list of legal, nonarbitrary reasons that have a rational relationship to bona fide employer concerns is nearly infinite. Common examples include an employee’s lack of experience, skills or education, misconduct on or off the job, personality conflicts, and superior qualifications of selectees. See articulated reasons and cases cited id. at 881-83 and in Schlei and Grossman, Employment Discrimination Law at 249-50 (1983-84 Cum.Supp.). 130

*1286 7. Once the defendant has produced admissible evidence that would allow a trier of fact to rationally conclude that the employment decision was not motivated by discriminatory animus, the initial presumption drops from the case, and plaintiff’s ultimate burden of persuasion now includes the requirement that he establish defendant’s proffered reason is a pretext for discrimination. Burdine, 450 U.S. at 256, 101 S.Ct. at 1095; Graefenhain v. Pabst Brewing Co., 827 F.2d at 18. 131 Plaintiff may meet this burden “either directly by persuading the court that a discriminatory reason more likely motivated the employer or indirectly by showing that the employer’s proffered explanation is unworthy of credence.” Id. See also Chipollini v. Spencer Gifts, Inc., 814 F.2d 893, 898-99 (3d Cir.1987) (en banc)) Yarbrough v. Tower Oldsmobile, Inc., 789 F.2d 508, 513 (7th Cir.1986); Fields v. Bolger, 723 F.2d 1216, 1219 (6th Cir.1984); Grabb v. Bendix Corp., 666 F.Supp. 1223, 1243 (N.D.Ind.1986). However, whichever method is chosen, plaintiff must show that an illegal motive influenced the decision, for only when defendant’s articulated reason is a pretext for accomplishing a discriminatory purpose will the plaintiff be entitled to recover under McDonnell Douglas, Burdine and Aikens. Pollard v. Rea Magnet Wire Co., Inc., 824 F.2d 557, 559 (7th Cir.1987); White v. Vathally, 732 F.2d 1037 (1st Cir.), cert. denied, 469 U.S. 933, 105 S.Ct. 331, 83 L.Ed.2d 267 (1984); Clark v. Huntsville City Board of Education, 717 F.2d 525, 259 (11th Cir.1983); Hagelthorn v. Kennecott Corp., 710 F.2d 76 (2d Cir.1983). A simple finding that the defendant did not truly rely on its proferred reason, without a further finding that the defendant relied on race, will not establish liability under Title VII. Clark, supra. 132 Thus it is not enough to show that the employer’s reasons were not the real reasons, were false, or were merely a pretext. Grabb v. Bendix Corp., 666 F.Supp. at 1244. Plaintiff must show that they were a pretext for discrimination. Id. citing Johnson v. University of Wisconsin-Milwaukee, 783 F.2d 59, 64 (7th Cir.1986). 133

In determining whether plaintiff can meet his ultimate burden of proving pretext and discrimination, the court must *1287 analyze the evidence on a cumulative basis. Roman v. ESB, 550 F.2d 1343, 1350-51 (4th Cir.1976); Ardrey v. United Parcel Service, 615 F.Supp. 1250, 1298 (W.D.N.C.1985), aff 'd., 798 F.2d 679 (4th Cir.1986). Several types of evidence may be probative of pretext. For instance, in the promotion context a plaintiff may produce evidence that the defendant departed from its usual business procedure, that the reason articulated was not uniformly applied, or that the procedures by which a decision was made were suspect or excessively subjective. Warren v. Halstead Industries, Inc., 802 F.2d at 753; Love v. Alabama Institute for Deaf and Blind, 613 F.Supp. 436, 438 (N.D.Ala.1984); Gerdom v. Continental Airlines, 692 F.2d 602, 604 (9th Cir.1982) (en banc). Evidence of a general atmosphere of discrimination may also be considered with other probative evidence, as well as proof of historically-limiting opportunity or harassment. Warren, supra; Holsey v. Armour & Company, 743 F.2d 199, 207-08, (4th Cir.1984), cert. denied, 470 U.S. 1028, 105 S.Ct. 1395, 84 L.Ed.2d 784 (1985). See generally Furnco, 438 U.S. at 580, 98 S.Ct. at 2951. Therefore, evidence of racial slurs or threats, though not the subject of a distinct claim, is relevant to the determination of pretext and intent. Warren, supra; Holsey, supra.

Finally, statistical proof may be a substantial sign of pretext, even if it alone is not dispositive of the claim. Warren, supra; Mozee v. Jeffboat, Inc., 746 F.2d 365, 372 (7th Cir.1984); Minority Employees at NASA v. Beggs, 723 F.2d 958, 962 (D.C.Cir.1983); Payne v. Travenol Laboratories, 673 F.2d 798, 820 (5th Cir.1982); Davis v. Califano, 613 F.2d 957, 963 (D.C.Cir.1979). Statistics can demonstrate whether defendant’s action in the case at issue conformed to a general pattern of discrimination. Id. 134 See also McDonnell Douglas, 411 U.S. at 805, 93 S.Ct. at 1825.

Accordingly, defendant’s proffered reasons must be viewed in the context of all of plaintiff’s evidence of pretext. Plaintiff's initial prima facie evidence should be combined with the evidence arising from cross-examination in order to determine whether defendant’s articulated reasons are legally sufficient or whether they should be discredited. Warren, supra; Ardrey, 615 F.Supp. at 1299. The trier of fact must consider the consistence and contradiction of the anectdotal and documentary evidence, as well as the credibility of all the witnesses, in determining whether the version of events as related by one party is internally plausible or whether the numerous inconsistencies and conflicting evidence renders the story told unreliable. Beatty v. Chesapeake Center, Inc., 818 F.2d 318, 321-22 (4th Cir.1987); Holsey, 743 F.2d at 207. See also Bechold v. IGW Systems, Inc., 817 F.2d 1282, 1285 (7th Cir.1987).

Application of these general disparate treatment principles to plaintiff’s specific promotion and appraisal claims follows se-riatim.

2. MPA 273-79 Promotion Claim

8. Plaintiff presented neither direct evidence of racial discrimination nor indirect evidence whose cumulative probative force supports as a reasonable probability the inference that race was a determining factor in her failure to promote under MPA 273-79. Without this evidence, plaintiff must resort to the McDonnell Douglas proof scheme to establish a prima *1288 facie case. 135

9. To establish a prima facie case of discriminatory non-promotion, plaintiff must demonstrate that (1) she is a member of a protected minority (2) she was qualified for and applied for the promotion (3) she was considered for and denied the promotion and (4) other employees of similar qualifications who were not members of the protected group were promoted at the time plaintiff was denied promotion. Bell v. Bolger, 708 F.2d 1312, 1316 (8th Cir.1983); Perryman v. Johnson Products Company, Inc., 698 F.2d 1138, 1142 n. 7 (11th Cir.1983); Bundy v. Jackson, 641 F.2d 934, 957 (D.C.Cir.1981); Judge v. Marsh, 649 F.Supp. 770, 779 (D.D.C.1986); Machakos v. Meese, 647 F.Supp. 1253, 1262 (D.D.C.1986). Cf. Holmes v. Bevilacqua, 794 F.2d at 146 (Fourth Circuit holding that fourth McDonnell Douglas element in failure to promote context is “that, after [plaintiff’s] rejection, the position remained open and the employer continued to seek applicants from persons of plaintiff’s qualifications.").

10. There is no question that plaintiff is black, that she applied for the Dental Assistant, GS-5, position under MPA 273-79, and that she was rejected by the rating and ranking panel. However, what plaintiff has convincingly failed to prove is that she was qualified for the position sought and that other similarly situated non-minority employees were promoted at the same time she was denied promotion.

11. Four HQC were listed for MPA 273-79. The panel found plaintiff lacked HQC # 2. Plaintiff presented no credible evidence to show that this determination was incorrect. The court finds that plaintiff did not possess the required experience and, thus, was not qualified for the position sought. See Finding of Facts 64-69. 136

12. Furthermore, plaintiff presented no evidence to satisfy the fourth prong of the McDonnell Douglas test. Thirty-five of the forty-three applicants for MPA 273-79 were screened out by the rating panel because they likewise lacked HQC # 2. Most of those rejected by the panel were white. Finding of Fact # 65. Candidates referred to the selecting official were considered because their qualifications met the job requirements and were superior to those of the plaintiff. Id. The record is void of any evidence indicating a white applicant lacking HQC # 2 or any HQC was referred by the rating and ranking panel.

Accordingly, the court finds that plaintiff has failed to establish a prima facie case of disparate treatment under McDonnell Douglas for her non-promotion in MPA 273-79.

13. However, since the court required the defendant to articulate a non-discriminatory reason for not promoting the plaintiff and the Supreme Court held in Aikens, 460 U.S. at 715, 103 S.Ct. at 1482, that “[w]here the defendant has done everything that would be required of him if the plaintiff had properly made out a prima facie case, whether the plaintiff really did so is no longer relevant,” the court will assume arguendo, that plaintiff has, in fact, made out her prima facie case and will continue with the Burdine/Aikens analysis. See Parker v. Board of School Commissions of City of Indianapolis, 729 *1289 F.2d 524, 526 n. 3 (7th Cir.1984); Bell v. Bolger, 708 F.2d at 1317 n. 7. But see EEOC v. International Business Machines Corp., 583 F.Supp. 875, 906 (D.Md.1984) (holding, after a full trial, that plaintiff failed to establish a prima facie case); Minority Police Officers v. City of South Bend, 617 F.Supp. 1330, 1355 (N.D.Ind.1985), aff 'd., 801 F.2d 964 (7th Cir.1986).

The court finds that defendant has tendered two legitimate, indeed inter-related, non-discriminatory reasons for plaintiff's failure to be referred and, a fortiori, selected under MPA 273-79. First, as previously stated, the rating panel determined that Blue lacked HQC # 2. This requirement, of specialty experience, which plaintiff plainly did not possess, constitutes a valid, specific, job-related standard. Blue’s lack of HQC #2 was, without doubt, the sole and dispositive reason for her failure to be referred to the selecting official in 273-79. Second, those candidates referred by the panel for possible selection and the ultimate selectee were simply by the fact that they possessed HQC # 2, better qualified than plaintiff for the position. Indeed, even if plaintiff had met HQC # 2 and been referred, the testimony of Sykes and Morgan convinces the court that Joan Brocki still would have been selected over the plaintiff based on their comparative qualifications.

In sum, assuming Blue established her prima facie case, defendant has adequately rebutted the presumption of discrimination under McDonnell Douglas by articulating legitimate reasons for her non-referral and, thus, non-promotion.

14. Equally significant, there is overwhelming evidence that defendant’s articulated justifications are not pretextual. No credible evidence exists to show that the panel misapplied the HQC in Blue’s case or failed to uniformly apply the criteria to all of the applicants in 273-79. The record is void of any evidence tending to show racial animus on the part of the panel, any panel member, or the staffing specialist. Furthermore, the court’s independent review of the evidence leads it to the inexorable conclusion that plaintiff did objectively lack the experience mandated by HQC # 2. And, contrary to plaintiff’s position, given these facts, Title VII does not require an employer to adopt a life of economic altruism and provide an automatic preference for protected class members by overlooking their inadequate qualifications. Gairola, 753 F.2d at 128.

To the extent plaintiff contends that defendant erred in failing to give her proper credit for prior experience, the court holds that plaintiff cannot prove the defendant’s reason for her non-promotion was pretextual merely by claiming that the staffing specialist or the rating panel were mistaken in their respective evaluations. An employer’s reason for his action may be a good reason, a bad reason or a mistaken reason, as long as the decision was not based on race or other unlawful discriminatory criteria. Grier v. Casey, 643 F.Supp. 298, 308 (W.D.N.C.1986) citing, inter alia, Sanchez v. Texas Commission on Alcoholism, 660 F.2d 658, 662 (5th Cir.1981); Jefferies v. Harris County Community Action Association, 615 F.2d 1025, 1036 (5th Cir.1980); Silberhorn v. General Iron Works Co., 584 F.2d 970, 972 (10th Cir.1978). An employer is not required to prove that its decision was correct. Id. Indeed, Title VII does not ensure the best candidates will be referred and selected— only that the selection process will be free from impermissible discrimination and, thus, that defendant’s asserted reason for the employment action is not pretextual. Grier, 643 F.Supp. at 309. See also Ledoux v. District of Columbia, 820 F.2d 1293, 1306-07 n. 22 (D.C.Cir.1987) (“To recover under Title VII, the appellants must prove illegal discrimination, not flawed personnel practices.”); Kier v. Commercial Union Insurance Co., 808 F.2d 1254, 1259 (7th Cir.1987); Casillas v. United States Navy, 735 F.2d 338, 344 (9th Cir.1984).

15. In addition, the rule in this circuit is that where relative qualifications are advanced as the non-discriminatory reason for an employment decision, the plaintiff has the burden of establishing that she was better qualified than the successful *1290 applicant (or referees). Gairola, 753 F.2d at 1287; Young v. Lehman, 748 F.2d at 198; EEOC v. Federal Reserve Bank of Richmond, 698 F.2d at 672. Blue has not satisfied this burden. No evidence exists to show that plaintiff was more qualified than any of the referees or the ultimate selectee in 273-79. Indeed, the record dis-ppsitively militates against any such conclusion. Blue’s own testimony, where she admitted on cross-examination her lack of knowledge of Brocki’s qualifications, fails to create even an inference of discrimination.

16. Plaintiff also presented no statistical evidence in support of this claim; thus, there is no evidence before the court of any significant statistical disparity in the treatment of comparably situated persons. See Magee v. Jeffboat, Inc., 746 F.2d at 372; Minority Police Officers v. City of South Bend, 617 F.Supp. at 1354 n. 56.

17. Finally, defendant’s reasons for not referring Blue were clear, specific and objective. She failed to meet a facially neutral, valid, job-related criterion. The HQC, particularly HQC #2, were clearly related to the job description announced for 273-79 on February 6, 1980. In all candor, Blue should have recognized from the outset, and the record establishes beyond cavil, that she did not possess the requisite specialty knowledge of equipment and material used in oral surgery, pathology, pe-dodontic, periodontic, or prosthodontic treatment.

Although obviously the comparison of an applicant’s OPF to a set of HQC involves some subjective determinations by the rating and ranking panel, as to whether the HQC have been met, such determinations are inherent in any promotion process as they provide one of the only means of carefully considering each person’s record vis-a-vis the substance of the job. See Casillas v. United States, 735 F.2d at 345. No hiring, promotion or evaluation process can be wholly objective. Such an idyllic system is beyond the realm of possibility as it disregards the fundamental nature of human beings and their complex inter-personal relationships. To the extent the panel made a subjective determination that plaintiff failed to meet HQC # 2, thus, that other candidates were more highly qualified than plaintiff, such limited subjective evaluations are not prohibited by Title VII. Id.; Judge v. Marsh, 649 F.Supp. at 781. See also discussion infra at 226-31. Title VII’s promise is that employment actions will not be based on impermissible considerations, not that subjective criteria or evaluations will be eliminated. Id. Blue cannot render sound employment judgments illegal simply by labeling them “subjective.” Id.

An employer’s subjective judgment in selecting and. applying criteria may be poor, or even erroneous, but the only relevant inquiry for this court is whether the defendant’s articulated reasons are pretex-tual and thereby mask unlawful discrimination. See Clay v. Hyatt Regency Hotel, 724 F.2d 721, 725 (8th Cir.1984). In this case, the panel’s determination with respect to Blue’s qualifications reflected only the subjectivity inherent in all such employment decisions. The court, having strictly scrutinized the panel’s action, finds that their decision was neither poor, erroneous, nor discriminatory. See Daniels v. Board of Education of Ravenna City School, 805 F.2d 203, 208-09 (6th Cir.1986); Love v. Alamance County Board of Education, 757 F.2d 1504, 1505-06 (4th Cir.1985).

18. In conclusion, plaintiff’s general assertion that she was discriminated against is wholly insufficient to show that defendant’s stated reasons for her non-promotion were pretextual. The court finds that plaintiff has failed to establish her prima facie case in 273-79 and, even assuming she did so, defendant has articulated legitimate nondiscriminatory reasons for his employment action which plaintiff failed to rebut. The court further finds evidence supporting plaintiff’s claim so utterly lacking that the only conclusion possible is that the claim is groundless and frivolous. 137 Accordingly, Blue’s disparate *1291 treatment claim for non-promotion in MPA 273-79 is hereby ordered DISMISSED.

3. MPA 303-79 Promotion Claim

19. Once again, plaintiff presented neither direct evidence of racial discrimination nor indirect evidence whose cumulative probative force supports as a reasonable probability the inference that race was a determining factor in her failure to promote under 303-79. Accordingly, resort must be had to the McDonnell Douglas test.

20. Without deciding the issue, the court assumes plaintiff has made a prima facie case on this claim. Although the first three elements of the McDonnell Douglas test are clearly met in this case, the court has serious questions about whether plaintiff presented sufficient evidence to meet the fourth prong under either the Per-ryman/Bundy standard or the Holmes v. Bevilaqua test. See Conclusion of Law # 9, supra. Nonetheless, the court will avoid this controversy, and under Aikens, proceed to review defendant’s articulated reasons for the employment action.

21. The court finds that defendant has established two legitimate and, again, inter-related non-discriminatory reasons for plaintiff’s failure to be referred and, thus, her non-promotion under MPA 303-79. First, the rating panel did not refer plaintiff to the selecting official upon proper invocation of the 85% Rule — a facially neutral employment rule governing the merit promotion process at that time. 138 Second, even if plaintiff should have been or had been referred, the selectee was vastly more qualified for the position than the plaintiff. Both of these articulations are specific, job-related, legitimate reasons which contradict plaintiff’s prima facie case. The court further finds that the 85% Rule actually governed the rating panel's conduct and the second reason would have controlled had it become necessary to make that determination. See Uviedo v. Steves Sash & Door Co., 738 F.2d 1425, 1429 (5th Cir.1984), cert. denied, 474 U.S. 1054, 106 S.Ct. 791, 88 L.Ed.2d 769 (1984). Both reasons clearly meet the “business rationality” standard. Thus, defendant has adequately rebutted the McDonnell Douglas presumption and the question becomes whether defendant’s reasons are pretextual.

22. As in 273-79, overwhelming evidence establishes that the defendant’s articulated justifications are not pretextual. No credible evidence exists to show that the panel misapplied the 85% Rule in plaintiff’s case or that it failed to uniformly apply the Rule to all of the applicants under the MPA. Whether the Rule was necessary or an appropriate yardstick is irrelevant, for the Rule was clearly in effect by provisions of the collective bargaining agreement at the time of plaintiff’s application. The record is void of any evidence from which even an inference of discriminatory animus on the part of the panel or panel members can be inferred. 139 Based on the information before the panel, the court’s review of MPA 303-79 indicates that the panel properly, if not overly credited plaintiff for her experience, appraisals, education and training, and awards. All of the candidates were rated using the same evaluation form, applying the same factors, following the same instructions, and considering the same criteria. No evidence remotely suggests any deviation from standard procedure with respect to any applicant, except for the beneficial re-evaluation of the plaintiff. The record is void of credible evidence indicating any manipulation of the promotion process by either the panel or CPO personnel. The factors considered in determining plaintiff’s final numerical rating were predicated on a detailed crediting plan and were largely objective. See, e.g., Minority Police Officers v. City of *1292 South Bend, 617 F.Supp. at 1366. See also Conclusion of Law # 17, supra.

Again, as with 273-79, to the extent the rating panel made any mistake in their calculations, and the court finds none, it would have occurred without racial animus. See Conclusion of Law # 14, supra. Furthermore, plaintiff failed to provide any statistical showing to support her allegation of disparate treatment under 303-79.

In sum, even assuming the court were to find the 85% Rule had an adverse impact upon the plaintiff, there is no evidence to suggest that the Rule was used by defendant to intentionally discriminate against the plaintiff and deny her referral and possible selection under 303-79.

23. Finally, even if plaintiff should have been referred to the selecting official for consideration, the court finds plaintiff would not have been selected for the position as the selectee, Ginette Moreau, was substantially more qualified than the plaintiff. Findings of Fact #80 and #81, supra. See Gairola, 753 F.2d at 1287; Young v. Lehman, 748 F.2d at 198. Supporting this conclusion, are the numerous findings detailing the views of plaintiffs supervisors and co-workers to the effect that plaintiff was an uncooperative, difficult, disruptive, and unprofessional employee. Given plaintiff’s personality problems and her erratic job performance, it defies reality to suggest that she would have been promoted to a position for which she was, unlike the selectee, at best barely qualified. See Lyons v. Boorstin, 44 FEP Cases 1006, 1014 (D.D.C.1986) [Available on WESTLAW, 1986 WL 15885] (“Title VII does not provide protection to an employee regardless of his or her behavior.”)

24. Accordingly, as to plaintiffs claim that she was treated differently and non-promoted under 303-79 on the basis of race, the court holds that assuming plaintiff presented a prima facie case of disparate treatment, defendant has articulated legitimate non-discriminatory reasons for her non-referral and non-selection which plaintiff has failed to establish are pretex-tual. The court further finds that evidence supporting plaintiffs claim is so lacking, quantitatively and in terms of credibility, that the only conclusion possible is that plaintiffs claim is meritless and frivolous. Based on these findings and conclusions, Blue’s disparate treatment claim for non-promotion in MPA 303-79 is ordered DISMISSED.

4. 1979 Supervisory Appraisal Claim 140

25. Title VII is violated when a supervisor, acting in his official capacity, deliberately places an inaccurate, discriminatory performance evaluation into an employee’s personnel file. Stoller v. Marsh, 682 F.2d 971 (D.C.Cir.1982). If the discrim-inatorily low evaluation reduces plaintiff’s overall point rating and prejudices her with respect to an opportunity for promotion, it fatally and invidiously infects the promotion process at issue. See id.; MacRae v. McCormick, 458 F.Supp. 970, 974-75 (D.D.C.1978); Stephenson v. Simon, 427 F.Supp. 467, 472-73 (D.D.C.1976).

26. As with the previous two claims, the court finds no direct evidence of racial discrimination with respect to Blue’s December, 1979, supervisory appraisal. Thus, plaintiff must resort to a prima facie showing based on indirect or circumstantial evidence. Whether one considers the following an adapted McDonnell Douglas test or simply a more defined indirect evidence-cumulative effect test, the court holds that in this context, plaintiff may establish a prima facie case by showing she (1) was a member of a protected group (2) was evaluated in a manner or procedure substantially different than that afforded similarly-situated non-minority employees, (3) resulting in a lower evaluation or rating for the plaintiff than the non-protected group employees. As an alternative, plaintiff may show she was given a lower rating than similarly-situated non-minority employees who performed at the same level as that of the plaintiff.

*1293 27. The court finds plaintiff has failed to establish a prima facie case as the record contains no evidence plaintiff was evaluated in any manner different from that of any other employee or that she received a lower rating than any other similarly-situated non-minority employee performing at substantially the same level. Blue was evaluated by her NCOIC on a standard form, using twenty standard factors, with grading based on a standard set of written instructions. The rating, following a formal established procedure, was in writing, was reviewed by Blue’s OIC, and provided for her immediate post-rating review. No credible evidence was proffered indicating this procedure differed from that afforded any other employee in DENTAC.

28. As for plaintiffs contention that Martha Soehren and Ann Randall, two white employees, were less competent than she but received a higher rating, the court concludes that no meaningful comparison can be made of Soehren because of her entirely different job responsibilities and Randall was rated higher because all the evidence established she was a markedly better and more professional employee.

29. Even assuming plaintiff has made a prima facie case, the court finds defendant has articulated legitimate nondiscriminatory reasons for plaintiff’s evaluation and plaintiff has patently failed to establish pretext. Defendant maintains and the court finds that plaintiff’s evaluation correctly reflected her frequent lack of cooperation, poor attitude, and mediocre job performance. The evaluation amounted to a satisfactory rating for, at best, a satisfactory employee. The opinions reflected in the appraisal, subjective though they were, were guided by fixed, defined criteria. The evaluation reflected the consensus of the professional judgment of plaintiff’s medical and non-medical supervisors based on their personal observations of her job performance. The appraisal given Blue was not significantly different in its final rating than any previous or subsequent annual or supervisory appraisal— certainly not to the point that an inference of discrimination could be drawn from any deviations in ratings alone. No statistical evidence was presented to support plaintiff’s allegation of disparate treatment nor was there any credible anecdotal evidence from which the court could infer that other black employees had been given lower performance ratings or been appraised in a different manner by the ADO’s in this case, Vincent and Paquette.

30. So, as in plaintiff’s other disparate treatment claims, what remains of Blue’s claim is her conclusory testimony that because she is black, her evaluators were white, and the evaluation was lower than she expected, she was discriminated against on the basis of race. See, e.g., Complaint at IV(f)(4). In reality, this argument rests on the highly disturbing and racist presumption that white employers are inherently prejudiced and discriminate against blacks. The law on employment discrimination does not, never has, and never will recognize such a presumption or inference. See Minority Police Officers v. City of South Bend, 617 F.Supp. at 1357. Cf. Autry v. North Carolina Department of Human Resources, 820 F.2d 1384, 1386 (4th Cir.1987) (plaintiff must show she was not promoted because of her race, not simply that she was a member of the black race and was not promoted). Plaintiff’s view refuses to recognize the fact that employment decisions are made in a multitude of contexts and are controlled by a myriad of factors, the vast majority of which constitute legitimate, non-discriminatory concerns, wholly independent of race and national origin.

Accordingly, based on the aforesaid, plaintiff’s discriminatory appraisal claim predicated on a theory of disparate treatment is hereby ordered DISMISSED. Given the lack of any credible evidence to support this claim, the court has no alternative but to find it likewise is groundless and frivolous.

B. Disparate Impact Claim

31. The essence of a disparate impact claim is the use of an employment practice to control employment opportunity *1294 when the use of that practice adversely and disproportionately affects the employment opportunities of a class protected by Title VII. Griggs, supra, and its progeny have established a three-part analysis for disparate impact claims. To establish a prima facie case of discrimination, a plaintiff must show that a facially neutral employment practice, policy or standard operates in a discriminatory manner, disproportionately excluding a protected class from the employment benefit at issue. Once the plaintiff has met this burden of production, the employer must demonstrate that “any given requirement [has] a manifest relationship to the employment in question,” in order to avoid a judgment for the plaintiff. 401 U.S. at 432, 91 S.Ct. at 854. Even in such a case, however, plaintiff may prevail if he shoulders the burden of proving that the employer was using the practice as a mere pretext for discrimination. Connecticut v. Teal, 457 U.S. 440, 448-49, 102 S.Ct. 2525, 2530, 73 L.Ed.2d 130 (1982); Dothard v. Rawlinson, 433 U.S. 321, 329, 97 S.Ct. 2720, 2726, 53 L.Ed.2d 786 (1977); Albemarle Paper Co. v. Moody, 422 U.S. at 425, 95 S.Ct. at 2375 (1975); Griggs, supra. 141 Unlike disparate treatment claims, there is no need to show proof of wrongful motive in an impact case. International Brotherhood of Teamsters, 431 U.S. at 335-36 n. 15, 97 S.Ct. at 1854 n. 15; Griffin v. Board of Regents of Regency Universities, 795 F.2d 1281, 1287 (7th Cir.1986). As the Court stated in Griggs, supra, “[g]ood intent or the absence of discriminatory intent does not redeem employment procedures ... that operate as built-in head winds for minoritygroups and that are unrelated to measuring job capacity.” 401 U.S. at 432, 91 S.Ct. at 854. The Court reasoned that Congress, by enacting Title VII, intended to achieve equality of employment opportunity and not merely to punish discriminatory motivation. Id.

32. Disparate impact analysis under Title VII is intended to identify artificial, arbitrary and unnecessary barriers to employment where those obstacles operate invidiously to discriminate on the basis of racial or other impermissible classifications. Teamsters, 431 U.S. at 331, 97 S.Ct. at 1852. However, until Connecticut v. Teal, supra, it was unclear whether disparate impact claims were limited to cases involving the effect of an employment practice on an entire protected group or whether the theory could likewise be used to prove an individual claim of discrimination. See Welch, Superficially Neutral Classifications: Extending Disparate Impact Theory to Individuals, 63 N.C.L.Rev. 849 (1985). In Teal, the Court broadly and dispositively answered the question by holding that disparate impact theory can be used to remedy individual claims under Title VII and to eliminate employment practices that limit the employment access and opportunities of a protected individual. 142 *1295 As Justice Brennan explained, “[t]he statute [§ 703(a)(2)] speaks, not in terms of jobs and promotions, but in terms of limitations and classifications that would deprive any individual of employment opportunities.” 457 U.S. at 448, 102 S.Ct. at 2531 (emphasis in original). Section 703(a)(2) is governed not only by a concern for the process rather than the outcome, but also by a concern for individuals rather than groups. Thus, the majority opinion provided:

The principal focus of the statute is the protection of the individual employee, rather than the protection of the minority group as a whole. Indeed, the entire statute and its legislative history are replete with references to protection for the individual employee.

Id. at 453-54, 102 S.Ct. at 2534. In sum, Teal holds that any individual who is unfairly denied an employment opportunity will not be without recourse under Title VII. When a plaintiff is denied relief, the denial must be based on a finding that the evidence fails to establish that the employment practice in question violates the purposes of the statute. See 63 N.C.L.Rev. at 878. 143

33. Turning to proof of plaintiff’s prima facie case, recent decisions have identified two distinct elements which must be satisfied by the plaintiff. First, the plaintiff must identify the facially neutral practice or policy which gives rise to the alleged discriminatory impact. Peters v. Lieuallen, 746 F.2d 1390-1392 (9th Cir.1984); Eastland v. Tennessee Valley Authority, 704 F.2d 613, 619 (11th Cir.1983), cert. denied, 465 U.S. 1066, 104 S.Ct. 1415, 79 L.Ed.2d 741 (1984). Second, plaintiff must offer evidence showing a causal relationship between the challenged employment practice and the alleged discriminatory impact. See Robinson v. Polaroid Corp., 732 F.2d 1010 (1st Cir.1984); Carpenter v. Board of Regents, 728 F.2d 911 (7th Cir.1984); Jordan v. Wilson, 649 F.Supp. 1038, 1047-48 (M.D.Ala.1986).

With regard to the second element of plaintiffs prima facie case, plaintiff must show that the employer’s facially neutral rule disproportionately excludes members of his Title VII-protected group. Griffin v. Board of Regents of Regency University. 795 F.2d at 1287. The evidence must reflect a “significantly discriminatory impact.” Teal, 457 U.S. at 446-47, 102 S.Ct. at 2530. Prima facie disparate impact is almost universally demonstrated by various statistical means, 144 depending on the nature of the challenged practice and employer. Although an employee’s statistics need not prove disproportionate *1296 impact with complete mathematical certainty, plaintiff must present supporting statistical data with some degree of precision and must establish disparate impact by a preponderance of the evidence. 145 See New York City Transit Authority v. Beazer, 440 U.S. 568, 99 S.Ct. 1355, 59 L.Ed.2d 587 (1979); Jordan v. Wilson, 649 F.Supp. at 1048-49; Shidaker v. Bolger, 593 F.Supp. 823, 834 (N.D.Ill.1984). Cf. Bazemore v. Friday, 478 U.S. 385, 106 S.Ct. 3000, 3009, 92 L.Ed.2d 315 (1986) (an employee’s statistics in a Title VII suit need not prove intentional discrimination with scientific certainty, but only by a preponderance of the evidence). Even though statistics are almost always determinative, in limited circumstances, a court may project disparate impact from non-statistical data. Dothard v. Rawlinson, 433 U.S. at 330, 97 S.Ct. at 2727; Carpenter v. Board of Regents, 728 F.2d at 914. Regardless of the method chosen, however, plaintiff must show that the application of the policy resulted in a significant discriminatory pattern. Carpenter, supra. See also Minority Police Officers v. City of South Bend, 617 F.Supp. at 1350.

34. If adverse impact can be inferred from plaintiff’s data or other eviden-tiary showing, defendant can rebut this prima facie case on one of two levels. First, the defendant may attack the accuracy, relevancy and reliability of plaintiff's statistical presentation or demonstrate how specific errors actually have affected the statistical results obtained from plaintiff's model. Robinson v. Polaroid Corp., supra; Moore v. Hughes Helicopter, Inc., 708 F.2d 475 (9th Cir.1983); EEOC v. Federal Reserve Bank, supra; 23 B.C.L.Rev. at 441. This level of attack challenges the conclusion of disparate impact that would otherwise be drawn from plaintiff's prima facie case, just as the defense in a disparate treatment case attacks the presumption of discrimination by producing evidence of a legitimate nondiscriminatory reason. Id. See also Eastland v. Tennessee Valley Authority, 704 F.2d at 619.

Assuming, however, that the challenged employment practice has an adverse impact on a protected class, the employer must then prove that the practice is justified by “business necessity.” Griggs, 401 U.S. at 431, 91 S.Ct. at 853. A practice amounts to a “business necessity” only when it bears “a manifest relationship to the employment in question.” Id. at 432, 91 S.Ct. at 854. The employer must demonstrate there is a compelling need to maintain the practice and that it, in fact, is substantially related to job performance. Id. See also Williams v. Colorado *1297 Springs School District No. 11, 641 F.2d 835, 842 (10th Cir.1981) (“The practice must be essential; the purpose compelling”). Proving job relatedness requires evidence that the practice is necessary to the safe and efficient operation of the business or that it substantially furthers the employer’s legitimate goal of efficient and trustworthy workmanship. Griggs, supra; Beazer, supra; Griffin v. Board of Regents of Regency Universities, 795 F.2d at 1287; Walker v. Jefferson County Homes, 726 F.2d at 1558; Levin v. Delta Airlines, 730 F.2d 994, 997 (5th Cir.1984); Liberles v. County of Cook, 709 F.2d 1122, 1132 (7th Cir.1983). See also 23 B.C.L.Rev. at 426-31 and 438-41. Thus, at this second level, the defense of business necessity accepts plaintiff’s proof of disparate impact, but shows that the impact is the result of a necessary or valid practice.

Although the Supreme Court has not clearly indicated whether the defendant bears the burden of proof or only a burden of production at this second stage of analysis, this court is inclined to follow those cases holding that the shift is one of persuasion. See, e.g., Segar v. Smith. 738 F.2d at 1267; Walker v. Jefferson County Home, supra; Moore v. Hughes Helicopters, Inc., 708 F.2d at 481; Eastland v. Tennessee Valley Authority, 704 F.2d at 619; Johnson v. Uncle Ben’s Inc., 657 F.2d 750, 752-53 (5th Cir.1981), cert. denied, 459 U.S. 967, 103 S.Ct. 293, 74 L.Ed.2d 277 (1982); Mister v. Illinois Central Gulf R.R., 42 FEP Cases 1710, 1719 (S.D.Ill.1985). However, plaintiff’s failure to make out a prima facie case, infra, renders this determination unnecessary.

35. Even if defendant meets his burden, plaintiff may still prevail by showing that defendant was using the practice as a mere pretext for discrimination or that other selection devices without a significant discriminatory effect would also “serve the employer’s legitimate interest — ” Albemarle Paper Co. v. Moody, 422 U.S. at 425, 95 S.Ct. at 2375. See also Connecticut v. Teal, 457 U.S. at 447, 102 S.Ct. at 2530; Dothard v. Rawlinson, 433 U.S. 329, 97 S.Ct. at 2726-27. 146 Application of the above guidelines to the case at bar now follows:

36. Plaintiff’s claim of disparate impact was dismissed by the court, upon motion of the defendant, at the close of plaintiff’s evidence. Fed.R.Civ.P. 41(b). If a plaintiff has not established a prima facie case, dismissal of the claim at the close of the plaintiff’s presentation is appropriate. Although adverse impact cases generally are not resolved on Rule 41(b) motions, EEOC v. Radiator Specialty Co., 610 F.2d 178, 185 n. 8 (4th Cir.1979), Title VII and the liberality with which it must correctly be construed, does not override or pre-empt the procedural requirements of Fed.R.Civ.P. 41(b). When a plaintiff fails to submit sufficient proof of impact to withstand a Rule 41(b) motion, as in this case, the motion should be granted rather than putting the parties, the court and the public to the exercise of trying out a case doomed to failure from the outset. 147 See, e.g., Amey v. Delta Air Lines, Inc., 24 FEP Cases 1477, 1482 (N.D.Ga.1980) [Available on WESTLAW, 1980 WL 316]; Schlei & Grossman, Employment Discrimination Law at 1325-26. Cf. Holmes v. Bevilacqua, 794 F.2d at 147-48 (disparate treatment case); Klein v. Trustees of Indiana University, 766 F.2d 275, 281-82 (7th Cir.1985) (same); Mitchell v. Baldridge, 759 F.2d 80, 83-87 (D.C.Cir.1985) (same); Gairola, 753 F.2d at 1287 (same).

37. The record in this case is astonishing for its lack of evidence to support plaintiff’s claim. Blue presented absolutely no statistical evidence to support her adverse impact allegation. Not only did plaintiff fail to elicit expert testimony on the subject, there wasn’t even a good faith attempt to produce the raw statistics. 148 *1298 As plaintiff’s counsel candidly conceded during argument on defendant’s motion to dismiss, at the time Blue’s claims were being tried, Dr. Parrow, plaintiff’s statistical expert, had not even analyzed the impact of the 85% Rule. Trans, at 614-15. Thus, plaintiff had alleged in her complaint, in the final pre-trial order, and in her pretrial brief that she had been discriminato-rily impacted by the 85% Rule, yet even as late as the middle of her trial, Blue and her counsel had never properly reviewed the data to determine if her claim was statistically or legally cognizable. This stunning failure, in a disparate impact claim dependent on statistical evidence constitutes, inter alia, a blatant violation of the obligations imposed on counsel under 28 U.S.C. § 1927 and Fed.R.Civ.P. 11. 149

In addition, aside from plaintiff’s eonclu-sory assertion that she was adversely impacted by the 85% Rule, and Dickerson’s tenuous “may have impacted” statement, no anecdotal testimony was offered to support the impact claim. 150 And, in this regard, plaintiff and subsequently Ballew in her own case, were thoroughly impeached, leaving not a shred of non-speculative, credible evidence against the 85% Rule. To defense counsel’s rhetorical questions during trial, Trans, at 583, “Where’s the beef? Where have they demonstrated a disparate impact?,” the court finds the incredible paucity of evidence emphatically mandates the response, “There isn’t any and, from this record, one would never know there ever was.” 151 See also Trans, at 584, 593-94, 621, 626, 628.

Finally, the court notes that it has reviewed, sua sponte, plaintiff’s OPF, the MPA’s in evidence to which she applied, and all the other relevant documentary evidence submitted by both parties, the result being not a scintilla of evidence was found to support an inference of racially discriminatory adverse impact in DENTAC under the 85% Rule. 152 Even plaintiff’s November 19, 1984, Proposed Findings of Fact and Conclusions of Law fails to point out any probative piece of evidence to support her impact claim and none was proffered by plaintiff's counsel during argument on the motion at trial. Trans, at 583-595 and 614-638. In sum, assuming any evidence existed to support plaintiff’s claim, it was not presented at trial.

Accordingly, the court finds plaintiff has failed to extablish a prima facie case and Blue’s claim of disparate impact under MPA 303-79 is therefore ordered DISMISSED. The court further finds that plaintiff’s absolute lack of evidence, particularly statistical evidence, to support her *1299 claim mandates an additional finding of meritlessness and frivolity.

C. Excessive Subjectivity Claim

38. Plaintiffs, in their complaint, attack nearly the whole of defendant’s merit promotion process as excessively subjective, leading to rampant intentional discrimination against black employees. Plaintiffs allege that “The Civilian Personnel Office ... maintains and uses subjective criteria and other devices for making decisions to transfer, promote and assign employees, which criteria rely excessively on inadequately controlled supervisory discretion, and which have the intent and effect of discriminating against black employees.” Complaint at IV(f). See also Final Pre-Trial Order at 11. Specifically plaintiffs complain that:

1. The choice of method used to fill a position is subjective;

2. Job descriptions are tailored to ensure the selection of pre-determined white employees;

3. The staffing specialist’s determination of whether a candidate meets basic eligibility requirements under posted MPA’s is subjective and left largely within the discretion of the specialist with little or no established objective guidelines;

4. The influence of the staffing specialist with the rating and ranking panel is extensive and, provides the opportunity for additional diseriminatorily subjective judgments at that stage of the process;

5. The rating and ranking panel’s determination as to whether a candidate meets the HQC is discretionary and excessively subjective;

6. Supervisory evaluations, rendered predominantly by white management personnel, play a crucial role in the promotion process and those evaluations are subjective, discretionary and discriminatory;

7. The decision whether an employee receives an award, training opportunity or detail assignment is left in the discretion of the employee’s supervisor, subject to no substantive scrutiny, and governed by vague, general criteria;

8. The disciplinary system places black employees “at the mercy of their individual supervisors,” “invites” discriminatory application, is governed by vague and incomplete standards, and is diseriminatorily “manipulated” by white management personnel; and

9. Selecting officials are provided little or no training on how to effect their employment decisions, are provided no objective standards or procedures for selection and, as a result, the selection process is excessively subjective and discriminatory. Complaint at IY(f); Final Pre-Trial Order ad 11-16 and 20-21. 153

Thus, it is readily apparent from these allegations that Blue, like her fellow plaintiffs, is attacking the merit promotion process for its discriminatory use of multiple, excessively subjective criteria and procedures. 154 The initial question for this court focuses on how best to analyze the claim. Because the answer to this question does not change the result in this case, the court’s analysis of this complex issue will be somewhat truncated.

39. As previously noted, disparate treatment and disparate impact are the two *1300 general analytical tools used in Title VII cases to resolve the ultimate issue of whether an employer has engaged in impermissible discrimination against an employee. Despite the language in International Brotherhood of Teamsters, supra, stating that either theory may be applied to a set of facts, courts have not uniformly determined how to handle excessive subjectivity claims. See Atonio v. Wards Cove Packing Co., Inc., 810 F.2d 1477, 1480-81 (9th Cir.1987). (en banc). Differences have arisen from the conflicting views of whether impact analysis can be applied to evaluate employment practices and standards different from the clearly objective test and diploma requirement scrutinized in Griggs, supra, or the height and weight criteria analyzed in Rawlinson, supra. Two decisions, one from the Fifth Circuit Court of Appeals and the other from the District of Columbia Circuit, exemplify the respective positions on both sides of the issue of whether impact, as well as treatment, analysis should apply to subjective promotion procedures.

In Pouncy v. Prudential Insurance Co. of America, 668 F.2d 795 (5th Cir.1982), the plaintiff alleged that Prudential had discriminated against its black employees by systematically failing to promote them. He introduced four statistical comparisons to show that Prudential discriminated against black employees. First, plaintiff presented evidence showing that, for employees hired between 1973 and 1977, the mean weekly salary of white employees exceeded that of black employees hired in the same year. Second, he presented evidence showing that in each year, from 1973 to 1975, the percentage of blacks promoted to managerial and supervisory positions was less than the percentage of blacks in Prudential’s workforce. Third, he demonstrated that before promotion to some jobs, black employees had a greater mean number of years of service with Prudential than did white employees. Finally, he introduced evidence showing that from 1973 to 1975 blacks were clustered in the lower levels of Prudential’s workforce and underrepresented in upper levels when compared with their percentage in Prudential’s workforce and with the workforce as a whole.

This over- and under-representation of blacks occurred although most jobs had no specific experience or educational requirements. Pouncy also argued that blacks remained at the lower levels, notwithstanding Prudential’s policy of internal promotion, because of three employment practices: (1) Job vacancies were not posted or otherwise made known to employees; instead, supervisors selected the employees for promotion; (2) Prudential’s “level system,” through which clerical employees often were hired at entry level positions and subsequently promoted to better jobs, retained black employees at the lowest paying and least skilled jobs; and (3) Prudential used subjective criteria to evaluate employee job performance to determine promotions.

The district court in Pouncy found plaintiff’s statistics flawed, 499 F.Supp. 427 (S.D.Tex.1980), and therefore held that plaintiff had not shown the adverse impact necessary to establish a prima facie case. In contrast, the Fifth Circuit found plaintiff’s legal theory flawed. Stressing the limited nature of employment practices that a plaintiff may challenge under the disparate impact theory, the court stated that “[t]he discriminatory impact model ... is not ... the appropriate vehicle from which to launch a wide ranging attack on the cumulative effect of a company’s employment practices_” 668 F.2d at 800. According to Pouncy, disparate impact analysis applies only to situations involving specific procedures that a plaintiff can show has a causal connection to a class-based imbalance in the workforce. The court reasoned that because of its origins, the disparate impact theory is limited to overt, clearly identified, nondiscretionary selection criteria applied at a single point in an employment process. Id. at 800-01; Lamber, Discretionary Decisionmaking: The Application of Title VII’s Disparate Impact Theory, 1985 U.Ill.L.Rev. 869, 880-84 (1985). See also Note, Applying Disparate Impact Theory to Subjective Employee Selection Procedures, 20 Loy.L.A. L.Rev. 375, 396-97 (1987). Support for this *1301 theory is predicated on two basic assumptions: (1) discrimination which results from subjective decisions is inherently the result of disparate treatment and (2) because of the difficulty of proving the job-relatedness of subjective decisions, the application of a disparate impact theory effectively renders subjective selection practices per se unlawful if they result in a significant statistical disparity.

Representing the other side of the coin, i.e., an expanded use of the disparate impact theory is Segar v. Smith, supra, a recent decision of the District of Columbia Court of Appeals. In Segar, plaintiffs launched a wide-ranging attack against the federal Drug Enforcement Agency (DEA), alleging racial discrimination in salary, promotion, initial GS grade assignments, work assignments, supervisory evaluations, and disciplinary actions. Plaintiffs presented a range of statistical and anecdotal evidence to show that DEA paid blacks less than whites that blacks were less likely than whites to be be hired at GS-9 rather than at GS-7, and that blacks fared worse in work assignments, supervisory evaluations, discipline, and promotions. The defendant argued that plaintiffs’ evidence was insufficient to support an inference of intentional discrimination by challenging the accuracy and significance of plaintiffs’ statistical evidence. The defendant also argued that even if the court accepted the plaintiffs’ statistical evidence, DEA had effectively rebutted the plaintiffs’ showing of discrimination.

In affirming the district court’s liability determination, the court of appeals understood the plaintiffs as proceeding under both the disparate treatment and the disparate impact theories. Plaintiffs alleged intentional racial discrimination in the employment system as a whole and challenged a number of DEA’s specific employment practices such as initial grade assignments, work assignments, supervisory evaluations, discipline, and promotion decisions. The court of appeals recognized the different aims and proof sequences of the two models but also noted that each claim involved a showing of disparity between the minority and majority groups in an employer’s workforce. 738 F.2d at 1267; 1985 U.Ill.L. Rev. at 884.

Having found unlawful discrimination under the disparate treatment model, the Segar court did not need to decide plaintiff’s adverse impact claim. However, the court affirmed the district court’s finding that the “DEA’s initial grade assignments, work assignments, supervisory evaluations, ... and promotion process had a disparate impact on black agents.” 738 F.2d at 1288 (citation omitted). Thus, the Segar court endorsed the use of disparate impact theory to analyze employment processes involving subjective components. Segar soundly criticized Pouncy’s assertion that complainants must initially pinpoint the specific cause of any disparate impact. Id. at 1271. “Such a requirement in effect permits challenges only to readily perceptible barriers; it allows subtle barriers to continue to work their discriminatory effects, and thereby thwarts the crucial national purpose that Congress sought to effectuate in Title VII.” Id. at 1271-72.

In addition, the Segar court specifically endorsed extension of disparate impact analysis to the subjective selection procedure used to determine agents’ grade assignments. Id. at 1288 n. 34. While the DEA contended that the one year “specialized experience” requirement was objective, the court found that the requirement comprised mainly subjective elements, making it more subjective than objective. The employer’s policy defined “specialized experience” as experience enabling an agent to demonstrate subjective assets such as tact, discretion, initiative, resourcefulness and the ability to gain the cooperation and confidence of others. Id. at 1275. Because “subjective criteria may well serve as a veil of seeming legitimacy behind which illegal discrimination is operating,” the Segar court concluded that it is proper to measure the “relation of such a subjective factor to an observed disparity.” Id. Thus, the court concluded that the statistical analysis of disparate impact should include the “specialized experience” factor as a potential source of discrimination, rather than removing it as a lawful reason *1302 to distinguish among employees. Id. See also 20 Loy.L.A.L.Rev. at 398.

40. Although few courts have attempted as comprehensive a study of Title VII jurisprudence as was written by Judge J. Skelly Wright in Segar, six other circuits have arrived at the same conclusion, that disparate impact analysis should be extended to review subjective employment practices and criteria: the Second, Third, Sixth, Ninth, Tenth, and Eleventh Circuits. See, e.g., Coser v. Moore, 739 F.2d 746 (2d Cir.1984); Zahorik v. Cornell University, 729 F.2d 85 (2d Cir.1984); Grant v. Bethlehem Steel Corp., 635 F.2d 1007 (2d Cir.1980), cert. denied, 452 U.S. 940, 101 S.Ct. 3083, 69 L.Ed.2d 954 (1981); Wilmore v. City of Wilmington, 699 F.2d 667 (3d Cir.1983); Rowe v. Cleveland Pneumatic Co., Numerical Control, 690 F.2d 88 (6th Cir.1982); Atonio v. Wards Cove Packing Co., Inc., supra; Hawkins v. Bounds, 752 F.2d 500 (10th Cir.1985); Lasso v. Woodmen of World Life Insurance Co., Inc., 741 F.2d 1241 (10th Cir.1984), cert. denied, 471 U.S. 1099, 105 S.Ct. 2320, 85 L.Ed.2d 839 (1985); Bauer v. Bailar, 647 F.2d 1037 (10th Cir.1981); Maddox v. Claytor, 764 F.2d 1539 (11th Cir.1985); Griffin v. Carlin, 755 F.2d 1516 (11th Cir.1985).

Two circuits, the First and the Seventh, have noted the Pouncy/Segar conflict, but have found it unnecessary to resolve the issue. See, e.g., Robinson v. Polaroid Corp., 732 F.2d 1010 (1st Cir.1984); Griffin v. Board of Regents of Regency Universities, supra; Soria v. Ozinga Brothers, Inc., supra. But see Shidaker v. Bolger, 593 F.Supp. at 834-35 (district court in Seventh Circuit applying impact analysis). The three remaining circuits, the Fourth, Fifth and Eighth, have held that impact analysis does not apply to subjective criteria, yet panel opinions in all three have reached contrary, conflicting results, sometimes applying impact analysis and other times not. Compare EEOC v. Federal Reserve Bank of Richmond, supra, and Pope v. City of Hickory, 679 F.2d 20 (4th Cir.1982) (impact does not apply) with Brown v. Gaston County Dyeing Machine Co., 457 F.2d 1377 (4th Cir.), cert. denied, 409 U.S. 982, 93 S.Ct. 319, 34 L.Ed.2d 246 (1972) and Robinson v. Lorillard Corp., 444 F.2d 791 (4th Cir.), cert. dismissed, 404 U.S. 1006, 92 S.Ct. 573, 30 L.Ed.2d 655 (1971) (applying disparate impact model); and compare Page v. U.S. Industries, Inc., 726 F.2d 1038 (5th Cir.1984 and Rowe v. General Motors Corp., supra (applying impact analysis) with Trevino v. Holly Sugar Corp., 811 F.2d 896 (5th Cir.1987); Watson v. Fort Worth Bank & Trust, 798 F.2d 791 (5th Cir.1986), cert granted, — U.S. -, 107 S.Ct. 3227, 97 L.Ed.2d 734 (1987); Bunch v. Bullard, 795 F.2d 384 (5th Cir.1986); Vuyanich v. Republic National Bank, 723 F.2d 1195 (5th Cir.), cert. denied, 469 U.S. 1073, 105 S.Ct. 567, 83 L.Ed. 2d 507 (1984); Pegues v. Mississippi State Employment Service, 699 F.2d 760 (5th Cir.), cert. denied, 464 U.S. 991, 104 S.Ct. 482, 78 L.Ed.2d 679 (1983); and Pouncy, supra (refusing to apply impact analysis); and compare Talley v. United States Postal Service, 720 F.2d 505 (8th Cir.1983), cert. denied, 466 U.S. 952, 104 S.Ct. 2155, 80 L.Ed.2d 541 (1984), and Harris v. Ford Motor Co., 651 F.2d 609 (8th Cir.1981) (same) with Gilbert v. City of Little Rock, 799 F.2d 1210, 1214 (8th Cir.1986) and EEOC v. Rath Packing Co., 787 F.2d 318, 327-28 (8th Cir.), cert. denied, — U.S. -, 107 S.Ct. 307, 93 L.Ed.2d 282 (1986) (utilizing impact analysis).

With the Fourth Circuit’s not having ruled dispositively on this issue and its opinions emanating mixed signals, this court has thoroughly considered the weight and logic of the above authority and finds worthy of note the Ninth Circuit’s recent en banc opinion in Atonio v. Wards Cove Packing Co., Inc., supra. Accordingly, that court’s analysis of the issue briefly follows. See Segar v. Smith, supra; 1985 U.Ill.L.Rev. 869, supra; 20 Loy.L.A.L.Rev. 375, supra; Comment, Disparate Impact and Subjective Employment Criteria Under Title VII, 54 U.Chi.L.Rev. 957 (1987).

41. Title VII proscribes all forms of employment discrimination. It does so without reference to either objective or subjective practices. Section 703(a)(2) states it is unlawful to “limit, segregate, or classify ... employees or applicants for employ *1303 ment in any way.” 42 U.S.C. § 2000e-2(a)(2) (emphasis added). The Supreme Court has construed this language as proscribing “not only overt discrimination but also practices that are fair in form, but discriminatory in operation.” Griggs, 401 U.S. at 431, 91 S.Ct. at 853. The Court in Griggs did not differentiate between objective and subjective barriers. In fact, the Court made frequent references to “practices” and “procedures,” terms that clearly encompass more than isolated, objective components of the overall process. Atonio, 810 F.2d at 1482; Griffin v. Carlin, 755 F.2d at 1524. Even in the Court’s most recent discussion of disparate impact analysis, Teal, supra, there was no indication of any conceptual limits on the theory as announced in Griggs. In sum, the Court’s holdings do not bar a plaintiff from making an impact challenge to a promotional system as a whole. Id. See also Teal, 457 U.S. at 458, 102 S.Ct. at 2537 (Powell, J; dissenting) (“our disparate impact cases consistently have considered whether the result of an employer’s total selection process had an adverse impact upon the protected group”) (emphasis added).

Furthermore, the Atonio court notes that there is considerable evidence that Congress endorsed the Griggs decision, the cornerstone of impact jurisprudence, during discussion of amendments to Title VII in 1972. Atonio, 810 F.2d at 1482-83. The section-by-section analyses of these amendments submitted by both houses of Congress expressly stated that in areas not addressed by the amendments, existing case law remained dispositive. 118 Cong. Rec. 7166, 7564 (1972). Thus, although Title VII was not amended to explicitly extend impact analysis to subjective practices, decisional law incorporated at that time had interpreted and applied Griggs to invalidate certain subjective hiring standards and procedures. Atonio, supra. See also 54 U.Chi.L.Rev. at 966-969.

Additional authority for applying impact analysis to subjective criteria in the first instance is found in the announcement of the agencies charged with enforcing Title VII — the EEOC, OPM, Department of Justice and Department of Labor — holding that the law requires application of the impact model to subjective selection procedures. Atonio, at 1483; Griffin v. Carlin, 755 F.2d at 1525; 20 Loy.L.A.L.Rev. at 409-410. The Uniform Guidelines on Employee Selection Procedures, issued by the above agencies, prohibit “[t]he use of any selection procedure which has an adverse impact on ... members of any race, sex, or ethnic group ... unless the procedure has been validated in accordance with these guidelines....” 29 C.F.R. § 1607.3. A (1985). “Selection procedures” are broadly defined to include, inter alia, informal and casual interviews, probationary periods, and work experience requirements. Id. at § 1607.16(Q). Many of the procedures enunciated in the Guidelines involve subjective judgments. Because the statutory language and legislative history support the administrative interpretation, the Guidelines are “entitled to great deference” and can be treated as “expressing the will of Congress.” Atonio, supra, quoting Griggs, 401 U.S. at 434, 91 S.Ct. at 855. See also Griffin v. Carlin, 755 F.2d at 1525; 1985 U.Ill.L.Rev. at 889-90.

42. Applying impact analysis to subjective practices and criteria is also supported by reference to the purposes of Title VII and policy considerations which pervade Title VII cases. Most employment decisions contain some element of subjectivity. Employers justifiably consider subjective, intangible qualities in their hiring, firing, promotion and performance appraisal decisions because subjective qualities do, in fact, affect job performance. However, the use of subjective systems and processes can create the potential for discriminatory results. See, e.g., Coates v. Johnson & Johnson, 756 F.2d at 543; Gilbert v. City of Little Rock, 722 F.2d at 1398; Lilly v. Harris-Teeter Supermarkets, 720 F.2d 326, 338 (4th Cir.1983). This potential for unfair results exists even where the employer and its decision makers lack discriminatory intent. 20 Loy.L.A.Rev. at 400. 155 *1304 To eliminate the “unintentional” variety of unlawful employment discrimination, application of impact analysis is essential. Since subjective practices can operate as “built-in” headwinds for minority groups as readily as can objective criteria, Griggs, 401 U.S. at 432, 91 S.Ct. at 854, these practices must be exposed and eradicated when they cause discriminatorily adverse impact without proof of a redeeming business necessity. Atonio, supra; Segar v. Smith, 738 F.2d at 1271-72.

Decisions that adopt the Pouncy limitation presuppose that there exists a logical basis for a “distinction between objective and subjective practices and for the correlative categorization of the analysis of the proof of impermissible discrimination.” Atonio, 710 F.2d at 1484. In their view, subjective practices are defined by intent and, thus, must be evaluated solely on that basis. In this regard, the court notes the following:

First, there is no bright line between objective and subjective employment criteria, as almost all criteria necessarily have both objective and subjective elements. Atonio, 810 F.2d at 1485. For example, while a written aptitude test may appear “objective,” the choice of questions, of the skills to be tested and the testing instruments to measure the skills, all involve some subjectivity. The reverse is also true. “Subjective” requirements, such as leadership or inter-personal skills, necessarily include certain objective components. “Thus, the terms merely represent extremes on a continuum, and cannot provide a line of demarcation to guide courts in choosing the appropriate analytical tool” under Title VII. Id.

Second, although subjective practices may be a covert means to effectuate intentional discrimination, they can often be “engendered by a totally benign purpose, or carried on as a matter of routine adherence to past practices whose original purposes are undiscoverable.” Id. at 1484. Subjective practices are just as likely to be neutral in intent as objective ones. But, if in fact the practices are a cover for invidious discrimination, the employer’s intent will be extremely difficult to unmask and prove. Exclusion of such practices from the reach of impact analysis, therefore, could serve only to encourage employers to use more highly subjective, rather than objective, selection criteria as a means of shielding their procedures from judicial scrutiny.

43. Accordingly, Atonio holds that a plaintiff may prove his claim of excessive subjectivity under either a disparate treatment or disparate impact analysis. However, to establish a prima facie case of disparate impact with respect to a subjective practice or criteria, plaintiff must (1) identify specific employment practices or selection criteria (2) show a legally significant disparate impact on a protected class and (3) show the causal relationship between the identified practices and the impact. Atonio, at 1482. See also 20 Loy.L. A.L.Rev. at 412-415. Obviously the burden of establishing this prima facie case will preclude certain excessive subjectivity claims from receiving disparate impact analysis. For example, the requirement that plaintiffs identify a specific practice or criteria prevents them from “launchpng] a *1305 wide ranging attack on the cumulative effect of a company’s employment practices.” Atonio, 810 F.2d at 1489 (Sneed, J., concurring) citing Spaulding v. University of Washington, 740 F.2d 686, 707 (9th Cir.), cert. denied, 469 U.S. 1036, 105 S.Ct. 511, 83 L.Ed.2d 401 (1984). Absent this requirement, the impact test would place on employers the burden of proving the business necessity of every facet of their evaluation and selection process, even if the plaintiffs failed to demonstrate disparate impact with respect to some of the procedures or criteria. Id. In addition, the requirement of causation also prevents disparate impact analysis of other claims. At a minimum, it requires a demonstration by the plaintiff that significant numbers of plaintiff’s protected group are qualified for the job benefit at issue. Id. at 1490.

44. Notwithstanding the above, the court declines to decide the legal issue presented for three reasons. First, it is unnecessary to do so since application of both disparate impact and disparate treatment analysis yields the same result in the case at bar. Second, it appears the Supreme Court will dispositively determine the question this term, having recently granted certiorari in Watson v. Fort Worth Bank & Trust, supra. Thus, how this court decides the issue is of little consequence. Finally, although Atonio and Segar are persuasive, meritorious arguments can also be tendered in specific instances for not broadly extending impact analysis to every excessive subjectivity claim.

Normally, recitation of the law on a particular topic is relatively easy with application of that law to the specific facts of a case being the much more difficult endeav- or. Here, however, the reverse is true. Having reviewed the complex law governing plaintiff’s excessive subjectivity contention, resolution of Blue’s claim, applying both models of analysis, easily follows.

45. As Finding of Fact, § III # 16, supra, indicates, there are three segments of the merit promotion process: job analysis and preparation of a job announcement, evaluation of applications, and selection. Since Blue never reached the selection stage in either of her two claims for relief, she has no standing to raise any issues of excessive subjectivity as they relate to that part of the process. She suffered no injury-in-fact from any action of the defendant at the selection stage and, therefore, fails to meet the pre-eminent condition precedent to maintaining an action on that basis. See Valley Forge College v. Americans United for Separation of Church and State, Inc., 454 U.S. 464, 472, 102 S.Ct. 752, 758, 70 L.Ed.2d 700 (1982); Gladstone, Realtors v. Village of Bellwood, 441 U.S. 91, 99, 99 S.Ct. 1601, 1607, 60 L.Ed.2d 66 (1979).

46. Analyzing plaintiff’s claim of excessive subjectivity under a disparate treatment theory first, the court holds that plaintiff has failed to produce any evidence from which this court might infer intentional discrimination on the part of the defendant in any facet of defendant’s pre-selection merit promotion process. The court specifically incorporates here its prior Findings of Fact and conclusions of Law from section V as they relate to this conclusion. 156 Briefly, the court holds as follows with respect to each of plaintiff’s specific allegations:

1. The choice of method used to fill job positions at Ft. Bragg is substantially objective, dictated by detailed and mandatory federal personnel and agency regulations. Not a shred of evidence was presented to the contrary by the plaintiff.

2. Job descriptions and minimum standards of eligibility were written using established OPM guidelines. The descriptions were specific and detailed. No evidence showed the descriptions to be inconsistent with the actual positions. Plaintiff failed to present any evidence to support her job-tailoring allegation. Indeed, the matter was never discussed in Blue’s case and was mentioned only briefly during the trial of the other claims.

*1306 3. The staffing specialists did determine basic eligibility of the applicants, but they did so by competently comparing an applicant’s SF-171 to the general OPM requirements. Contrary to plaintiffs argument, the court finds the specialists’ determinations were not decisions of unbridled discretion. Although subjective in the sense that all comparisons of a candidate’s prior experience, education, etc., with mandated job requirements requires the exercise of some discretionary professional judgment, the staffing specialists followed a formal, standardized procedure and no evidence was presented to show any deviation from that procedure, let alone discriminatory intent. In addition, a review of the record reveals not a single witness testified as to non-promotion because they were improperly determined to lack the basic eligibility requirements.

4. Once again, the court finds no evidence was presented to establish any undue influence on the part of a staffing specialist with respect to any rating and ranking panel. A specialist’s duties while working with the panel are well defined and substantially limit his or her role once the panel convenes.

5. The court has previously rendered extensive findings with respect to the development and application of the HQC in Blue’s claims for relief under MPA’s 273-79 and 303-79. The gravamen of those findings hold true with respect to all promotion claims for relief heard by the court. The HQC were developed in a highly professional, thoughtful manner, were reviewed prior to job-posting for job-relatedness, and were, in fact, patently job-related. The criteria were often very specific and focused on necessary job skills and abilities, rather than personal traits or behavior. For example, HQC numbers 2, 3, and 4 in MPA 273-79 (DX210) all require particularized knowledge of dental equipment, material and procedures or dexterity skills necessary for the job. See also, e.g., DX207 at 3 and DX205 at 4. Whatever subjective criteria may have been used, there is no evidence the criteria were developed or used in a discriminatory manner. Further, to the exent any behavior or interpersonal skills were considered as HQC, see HQC # 1 in MPA 273-79, these criteria were limited in number and were reasonable in that they enabled the panels to carefully consider each applicant vis-a-vis the substance of the job, apart from the necessarily rigid, itemized criteria that otherwise were listed. See Casillas v. United States, 735 F.2d at 345. 157

Furthermore, the rating and ranking process at Ft. Bragg involved the use of individualized position crediting plans by the panels. This is a far cry from those cases where the various participants in the promotion process evaluated the applicants according to their own individual beliefs and standards. See, e.g., Jordan v. Wilson, 649 F.Supp. at 1048. The panel members do not rely on their personal knowledge of the applicant to evaluate him; rather, they apply written job-specific standards to an employee’s written application for promotion and his OPF. Compare id. The process is formal, not informal. It is standardized and widely-known, not discretionary and covert.

Again, at the risk of boring by repetition, plaintiff failed to produce any anecdotal evidence indicating even one rating and ranking panel whimsically ignored their written instructions or failed to carry out their responsibilities while in session.

6. Performance appraisals are by their very nature inherently subjective — more so than most other phases of a promotion process. Notwithstanding that fact, defendant’s formal supervisory appraisal process places significant limits on a supervisor’s ability to discriminate. See generally Ashe, Jr. and McRae, Performance Evaluations Go to Court in the 1980’s, 36 Mercer L.Rev. 887 (1985). First, it involves the *1307 use of a written, filed appraisal form containing written instructions for the appraiser. Second, the process attempts to quantify the evaluation process through the use of twenty specific factors and six possible grades per factor. Third, the rating is reviewed by an employee’s second-line supervisor; thus, an unusually low or substantially different evaluation from that previously given the employee is much more likely to be questioned. Fourth, the appraisal is placed in the employee’s OPF for his or her review. Fifth, the effect of the appraisal on the employee’s changes for referral is minimized by its limited point value in the rating process. Under these circumstances, the court does not find the defendant’s supervisory appraisal process excessively subjective as established. Nor has Blue presented any credible evidence of discriminatory application in her case or on a systemic basis.

7. The court finds it unnecessary to make any further findings or conclusions with respect to defendant’s process of awards, training opportunities or detailing, as plaintiff presented no credible evidence to indicate she was discriminatorily denied any of the above. See specifically Findings of Fact § III #32 and #33. The respective processes, although involving some subjective judgments by supervisors and CPO staff, are generally governed by formalized procedures and standards and are controlled, in large measure, by legitimate fiscal restraints. 158

8. Contrary to plaintiff’s assertion, this court does not find that defendant’s disciplinary system left black employees at the mercy of white supervisors. Disciplinary action at Ft. Bragg is governed by very formal procedures, which take into account and extensively limit a supervisor’s ability to initiate and effect any “lone-ranger” type of discipline. Obviously, the system can be manipulated and a supervisor can discriminatorily mete out punishment if he is intent on so doing, but Blue produced no credible evidence in support of this allegation. Indeed, discipline as to her was “extremely lenient and fully justified” by her conduct. The record is literally void of evidence upon which this court can predicate a finding of excessive subjectivity leading to discriminatory discipline of black employees. 159 Individual incidents of discriminatory punishment very likely occur on a base as large and varied as Ft. Bragg, but there is no evidence of any systemic defect in the disciplinary process as established by the defendant.

47. Accordingly, plaintiff’s excessive subjectivity claim based on a disparate treatment analysis must be DISMISSED. As with plaintiff’s other claims, the lack of evidence to support this allegation is so substantial that a finding of frivolity is required.

48. Although the court has found it appropriate to use disparate impact analysis as well, Blue completely fails to make out a prima facie case of excessive subjectivity based on adverse impact. Plaintiff has identified specific components of the process she deems to be at fault, but there is not the slightest showing of disparate impact on blacks and, a fortiori, a causal connection between the identified procedures and any impact. The record *1308 reflects a total absence of statistical evidence in the trial of this case. No attempt was made to analyze the procedures identified for any possible adverse impact. No anecdotal or documentary evidence was offered, even in conclusory fashion, in an attempt to correlate adverse employment decisions to a particular phase of the merit promotion process. See Shidaker v. Bolger, 593 F.Supp. at 835. It is ridiculous to suggest that it is enough for a plaintiff, even a credible one, to take the witness stand and testify that “I am black; I was non-referred due to a discriminatory application of the HQC by a rating and ranking panel, therefore, the rating and ranking process is excessively subjective and violates Title VII.” Considerably more than that is required to make out a prima facie case of disparate impact. Even if expert testimony is not required in every case, at a minimum, some presentation of raw data and correlation of that data to the challenged practices by lay testimony is mandated. This case had none of the above. 160 Accordingly, plaintiffs excessive subjectivity claim based on disparate impact is DISMISSED as vexatious and meritless.

D. Retaliation Claim

49. Blue also claims that her non-referral for promotion in both 273-79 and 303-79 was the result of retaliation by the defendant for her efforts to challenge defendant’s racially discriminatory employment practices. Title VII protects employees against retaliation by an employer for participation in opposition to discriminatory employment practices. 42 U.S.C. § 2000e-3. The sequence of proof and burdens prescribed by McDonnell Douglas *1309 and Burdine govern retaliation claims. Ruggles v. California Polytechnic State University, 797 F.2d 782, 784 (9th Cir.1986); Ross v. Communications Satellite Corp., 759 F.2d 355, 365 (4th Cir.1985). The employee is initially required to establish a prima facie case of retaliation by a preponderance of the evidence. To do so, a plaintiff must show (1) that he engaged in statutorily protected activity; (2) that the employer took adverse employment action against him; and (3) a causal connection exists between the two. Ross, supra; Donnellon v. Fruehauf Corp., 794 F.2d 598, 601-02 (11th Cir.1986); McKenna v. Weinberger, 729 F.2d 783, 790 (D.C.Cir.1984); Coleman v. Wayne State University, 664 F. Supp. 1082, 1091 (E.D.Mich.1987). As in disparate treatment cases, the burden of establishing a prima facie case “is not onerous.” Burdine, 450 U.S. at 253, 101 S.Ct. at 1093. Once a prima facie case has been presented, the employer must rebut the presumption of retaliation with a legitimate non-discriminatory reason for his actions. The employer is not required to prove the absence of retaliatory motive, but only to raise a genuine issue of fact as to whether retaliation for the protected activity occurred. Ross, supra; Wrenn v. Gould, 808 F.2d 493, 501 (6th Cir.1986). If the defendant carries his burden of production, then the court must inquire whether the stated reason is merely pretextual. 161 For the employee to disprove a legitimate nondiscriminatory explanation, he must show that the alleged retaliation would not have occurred “but for” the protected conduct. Ross at 365-66. The “but for” standard directs the factfinder’s attention to the predominant reason for the employer’s action and ensures that an employee will not be prejudiced as a consequence of exercising his right to protest perceived discrimination. Id.

50. Here, Blue clearly engaged in protected action by filing complaints of discrimination with her union and the EEO office at Ft. Bragg as early as 1978. Plaintiff contends her supervisors knew of her activities, disapproved and, thus, retaliated against her by failing to promote her. Blue’s failure to promote constitutes an adverse employment action. Thus, any dispute as to whether plaintiff has made a prima facie case focuses on the third prong of the Ross test.

A “causal connection” may be demonstrated by the proximity of the adverse action to the protected activity, provided, the employer, through the ADO, had knowledge or it can reasonably be assumed he had knowledge of the plaintiff’s protected activities. See McKenna v. Weinberger, 729 F.2d at 791, Judge v. Marsh, 649 F.Supp. at 782. In this case, plaintiff’s failure to promote under both MPA’s was the direct result of the actions of the respective rating and ranking panels. There is no evidence to suggest otherwise. Therefore, plaintiff must show the panel members had prior knowledge of the EEO and union activities. This plaintiff has not shown.

The court has previously found a lack of evidence in either promotion claim with respect to the individual panel members. None of the panel members were mentioned by name in the litigation and none testified. There was no evidence to show the panels acted unreasonably or deviated from standard procedure in either merit promotion claim. Plaintiff failed to make *1310 any showing indicating their prior knowledge of her protected activities and not a shred of direct evidence exists to even suggest they knew.

In order to establish the requisite causal connection, plaintiff, at best, can rely on two possible inferences. First, Blue testified that “management” was well aware of her complaints. Indeed, from the ongoing nature of those complaints, this is doubtless true, if one defines “management” as the DENTAC Commander, Blue’s OIC’s, and her NCOIC’s. If any of the panel members fell into one of these categories, plaintiff clearly would have made a prima facie case. The problem is none of the panel members fit within the “management” structure. All of the panelists were dentists and since none of their names were ever mentioned at trial, the court reasonably assumes they practiced at dental clinics other than DC-6. There is no evidence to suggest they discussed plaintiff and her union/EEO activities with management officials or other dentists from DC-6. In fact, there is little, if any, evidence to indicate that the dentists at the different clinics interacted — let alone regarding personnel or clinic-specific matters. In short, it is much more likely than not that the panel members who decided plaintiff’s promotion applications never knew of plaintiff’s protected activities. 162

The second inference upon which plaintiff might rest her case is that the CPO staffing specialist, against regulations, informed the panels about plaintiff’s on-going activities, presumably in an effort to retaliate and discriminate. No evidence was presented to suggest this occurred— not from a panel member, not from a union observer, not from any CPO official, and not even from the plaintiff. Given this lack of evidence, the court finds it impossible to assume that a staffing specialist deliberately violated agency regulations governing the panel process and, in effect, broke the law, by informing either panel of plaintiff’s race discrimination complaints.

Thus, although “management” knew of Blue’s involvement in the EEO administrative and agency grievance process, since plaintiff did not reach the “selection” stage of the merit promotion process, there is no evidence to show that those who knew played any part or affected any decision regarding plaintiff’s failure to promote. Plaintiff’s inferences, even if stacked together, fail to provide a bridge of support for plaintiff’s prima facie case as their tenuous foundation, consisting of pure conjecture and speculation, collapses under the weight of plaintiff’s preponderance of the evidence burden. 163 Accordingly, the court finds plaintiff has failed to establish a prima facie case of retaliation.

51. Assuming, arguendo, that a causal connection existed, 164 defendant has *1311 advanced legitimate non-discriminatory reasons for plaintiff’s non-referrals. Further, for the reasons previously discussed in depth, supra, the court finds no evidence of pretext. Accordingly, plaintiffs retaliation claim with respect to her non-promotions in 273-79 and 303-79 is ordered DISMISSED. As with Blue’s other claims for relief, the paucity of evidence on this claim establishes it as meritless and groundless.

E. Plaintiff’s Affirmative Action “Preference” Argument

52. One theme that pervaded plaintiffs’ arguments before the court was the concept that defendant’s Affirmative Action Plan (the AAP) required either the selection of or significant preference 165 for black applicant(s) to merit promotion positions where the AAP showed underrepre-sentation. See discussion supra at pp. 1224-1225. Taking the argument to its logical conclusion, plaintiffs claimed that a violation by the defendant of the provisions of the AAP constituted a per se violation of Title VII. For the reasons previously discussed, as well as those that now follow, this argument is summarily rejected.

First, the court begins with the dispositive proposition that “[Title VII] does not require any employer to grant preferential treatment on the basis of race or gender, but since 1978 [Bakke] the court has unambiguously interpreted the statute to permit the voluntary adoption of special programs to benefit members of the minority groups for whose protection the statute was enacted.” Johnson v. Transportation Agency, Santa Clara County, California, — U.S. -, 107 S.Ct. 1442, 1458-59, 94 L.Ed.2d 615 (Stevens, J., concurring). Thus, although the defendant, like other federal agencies, is under an obligation to implement an AAP by authority of executive directives, defendant is not required to do so by Title VII. Accordingly, there is no Title VII cause of action for the failure to implement or utilize an affirmative action program. Ferguson v. Veterans Administration, 723 F.2d 871, 872 (11th Cir.1984). As the Fourth Circuit held in Page v. Bolger, 645 F.2d 227, 233-34 (4th Cir.) (en banc), cert. denied, 454 U.S. 892, 102 S.Ct. 388, 70 L.Ed.2d 206 (1981):

[It is argued that] a proven violation of the Postal Service’s statutorily mandated ‘affirmative program’ designed to eradicate discrimination, would be made a violation of Title VII itself. Affirmative action undertakings by government employers would come in practical terms to define the standards for compliance with Title VII’s antidiscrimination provisions. We do not think this could accord with Congressional intent.

(citations omitted). See also Shidaker v. Bolger, 593 F.Supp. at 838 (“[t]here is no obligation under Title VII requiring an employer to integrate its workforce or make ... preferential promotions_”). But see Fang-Hui Liao v. Dean, 658 F.Supp 1554 (N.D.Ala.1987) (employer required to adhere to its own AAP with a failure to do so being actionable).

Second, although AAPs were in effect at Ft. Bragg during all time periods relevant to this litigation, none of those plans mandated, required or provided for any race-based preference for black applicants. See DX159-161. No racial quotas were established. The plans reviewed, in depth, the statistical profile of the composition of defendant’s overall workforce. The plans, using undifferentiated data, attempted to define those areas of the workforce where blacks were under-represented in proportion to their general representation in the community. Finally, the plans established certain broad annual or cyclical objectives in an effort to eliminate targeted underrep-resentation.

Thus, the court finds the defendant voluntarily adopted an affirmative action plan with the goal in mind of more proportionately balancing the workforce at Ft. Bragg *1312 through methods that included, inter alia, increased minority recruitment, education of managerial and supervisory personnel, and elimination of systemic obstacles to minority promotion. What the AAPs most definitely did not include was a statement of preference or priority for minority over non-minority candidates at any stage of the merit promotion process. Accordingly, even if Blue could assert a violation by the defendant of his obligations under Ft. Bragg’s internal AAPs as a violation of Title VII, there was, in fact, no violation of the provisions of any AAP. 166

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