Case: Bernardi v. Yeutter

Gene Bernardi was hired as a sociologist at the United States Forest Service in July 1968. Less than a year later, she was promoted based on a panel's evaluations of her work. However, two years later, the panel declined to recommend her for another promotion. Subsequently, Bernardi requested and received a second evaluation that contradicted the first, now recommending her for promotion. Despite the new recommendation, the Director of Personnel Management declined to offer her the advancement and pay raise.

On December 5, 1972, Bernardi filed a complaint of gender-based discrimination. The complaint was investigated by the Forest Service, which report found no evidence of discrimination. Bernardi was given the opportunity to have a further administrative hearing on the matter but chose instead to file this class-action lawsuit on behalf of all female employees against the U.S. Department of Agriculture (USDA), the Forest Service's parent organization, under the 1972 amendment to Title VII of the Civil Rights Act of 1964. The complaint was filed on June 29, 1973 in the Northern District of California, represented by a non-profit advocacy group and a private law firm. The case was assigned to Judge Samuel Conti.

The USDA moved to dismiss for lack of subject matter jurisdiction, arguing that the alleged discrimination occurred prior to the 1972 amendment and so could not be used as a cause of action. On April 17, 1974, Judge Conti dismissed this motion, agreeing that the amendment can only be applied prospectively but disagreeing with the factual analysis that the alleged discrimination took place only prior to 1972.

However, in the same opinion, Judge Conti also found that Title VII did not grant Bernardi the right to a trial on the merits de novo but rather only a review of the administrative record. Finding the administrative record complete and conclusive, Judge Conti granted summary judgment in favor of the USDA. 1974 WL 168.

Two years later, in a three-word opinion, the Ninth Circuit vacated and remanded the lower court's judgment. Though no explanation was given, this presumably was meant to clarify that Title VII did give Bernardi a right to a trial de novo on the merits of her case. 539 F.2d 717.

Now back in District Court, on October 28, 1977, Judge Conti certified the class, "every female employee and/or ex-employee of the Forest Service of the United States Department of Agriculture who could have filed a timely charge (. . .) for alleged sex-discriminatory policies, practices, and/or actions, at any time on or after the thirtieth (30) day prior to December 5, 1972." 1977 WL 15444.

Following discovery, the parties entered into a consent decree that was approved by the courts on July 1, 1981 and that was originally slated to be in effect until 1986. According to the consent decree, the USDA had to match the gender profile of California’s civilian workforce by employing 43 percent women, in addition to other benchmarks pertaining to career advancement and the inclusion of women into fields previously dominated by men. The USDA was required to submit progress reports every six months, and an independent monitor was installed at the USDA's expense. The court retained jurisdiction for the length of the consent decree, plus six months.

In 1986, the female class filed a contempt motion in which they sought to establish the USDA's failure to comply with the consent decree. At that time, the monitor was preparing a report which would reach precisely that conclusion. Consistent with the monitor's findings, the magistrate found that the USDA had indeed failed to comply with the decree. As a result, the decree was extended five more years to 1991. There was a brief controversy as to how much in attorney's fees the plaintiffs were entitled, having won their motion: the magistrate judge recommended that the plaintiffs receive $630,214.99; the district court, believing that the numbers were inflated by unreasonable attorney rates and billed hours, awarded $113,116.32 (754 F.Supp. 743); the Ninth Circuit settled on $299,959.07 (942 F.2d 562).

On February 28, 1990, a group of male employees of the Forest Service attempted to intervene in the case in order to block the consent decree on the grounds that it discriminated against them as men. On that same day, without a hearing, a district judge not assigned to the original case signed the male class's proposed Temporary Restraining Order. Two days later, Judge Conti, the judge assigned to the case since 1973, dissolved the Temporary Restraining Order and denied the motion to intervene. This was affirmed by the Ninth Circuit, which held that the male employees' motion was untimely. 945 F.2d 408. These male employees subsequently refiled their case as a separate lawsuit against the Forest Service; however, that complaint was dismissed for failure to state a claim, a decision that was also affirmed by the Ninth Circuit. 74 F.3d 1246. The male employees subsequently sought review in the Supreme Court were denied.

In 1992, the plaintiff class of female employees and the Forest Service mutually agreed to another two-year extension of the consent decree, to its final year in effect, 1994.

Six months before the consent decree was set to expire, a new class of female employees of the Forest Service filed a new case, Donnelly v. Glickman that would go on to create another consent decree with similar goals, to which the Forest Service was bound until 2006.

Available Opinions

Bernardi v. Butz, No. C-73-1110 SC, 1974 WL 168 (N.D. Cal. Apr. 17, 1974)

Bernardi v. Butz, 539 F.2d 717 (9th Cir. 1976)

Bernardi v. Bergland, No. C-73-1110 SC, 1977 WL 15444 (N.D. Cal. Oct. 28, 1977)

Bernardi v. Yeutter, 754 F. Supp. 743 (N.D. Cal. 1990), aff'd in part, rev'd in part, 942 F.2d 562 (9th Cir. 1991), opinion amended and superseded, 951 F.2d 971 (9th Cir. 1991), and aff'd in part, rev'd in part, 951 F.2d 971 (9th Cir. 1991)

Bernardi v. Yeutter, 942 F.2d 562 (9th Cir.), opinion amended and superseded, 951 F.2d 971 (9th Cir. 1991)

Bernardi v. Yeutter, 945 F.2d 408 (9th Cir. 1991)

Levitoff v. Espy, 74 F.3d 1246 (9th Cir. 1996)