TERRY v. GALLEGOSNo. 92-2729-MI/A.
926 F.Supp. 679 (1996)
Joseph Ray TERRY, Plaintiff,
Tony E. GALLEGOS, Chairman of the United States Equal Employment Opportunity Commission, Defendant.
Tony E. GALLEGOS, Chairman of the United States Equal Employment Opportunity Commission, Defendant.
United States District Court, W.D. Tennessee.
May 16, 1996.
Donald A. Donati, Donati & Associates, P.C., Memphis, TN, for plaintiff.
Lisa Olson, Carlotta Wells, Anne Gulyassy, U.S. Department of Justice, Washington, DC, Stuart Gerson, Office of Attorney General, Washington, DC, for defendant.
MEMORANDUM OPINION AND ORDER
McCALLA, District Judge.
Plaintiff Joseph Ray Terry, Jr., a white male attorney employed as Regional Attorney by the EEOC, brings this suit against Tony E. Gallegos, as Chairman of the United States Equal Employment Opportunity Commission (EEOC), alleging race and sex discrimination, and retaliation in violation of Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. § 2000e-2(a)(1) and 2000e-3(a) (1995). A bench trial was conducted on November 21, 22, 23, 25, 1994, and December 1, 2, 5, 15, 1994, with final submittals and argument completed on September
The EEOC is a federal government organization entrusted with the investigation and prosecution of alleged violations of Title VII of the Civil Rights Act of 1964, and other anti-discrimination statutes. (Stip. 5.) Plaintiff Terry has been the Regional Attorney in the EEOC's Memphis District Office from 1979 to the present, during which time he has served in other EEOC positions in a temporary capacity.
Over the course of his employment at the EEOC and during the period relevant for the present case, plaintiff applied to or expressed interest in a significant number of Senior Executive Service (SES) positions.
This action is based on three Equal Employment Opportunity (EEO) administrative claims filed by plaintiff in connection with selections to the SES, the EEOC's highest rank for management officials.
In the action before this Court, plaintiff specifically asserts the he was discriminated against on the following bases: (1) race and retaliation as to the SES District Director selections in Atlanta and Cleveland in 1984,
The SES was created by the Civil Service Reform Act of 1978, 5 U.S.C. § 3391, et seq.
SES officers are selected on a competitive or non-competitive basis.
The CDP is a part-time program that includes formal government executive training and temporary assignments, designed to allow candidates to acquire management skills necessary for service in the SES. (Stip. 37.) Persons compete for acceptance to the CDP under procedures similar to those required for entry into the SES.
Ten persons have graduated from the CDP since its inception.
During the relevant period, the Chairmen of the EEOC were Justice Thomas (from 1982 to March 1990) and Evan Kemp (from March 1990 to April 1993). (Stip. 20.) The heads of the various EEOC offices report to the Chairman. (Stip. 5.) James Troy held the position of Director of the Office of Program Operations (OPO) from October 1, 1984, until January 27, 1995. (Stip. 11.) The OPO has oversight responsibility for investigating and processing charges of employment discrimination, and jurisdiction over the district offices; the Director of OPO reports to the Chairman. (Stip. 8-10.) Another office, that of the Office of the General Counsel (OGC), has primary responsibility for litigating cases on behalf of the EEOC. (Stip. 16.) The OGC has two SES positions, that of General Counsel and the Deputy General Counsel.
EEOC field offices are managed by District Directors, who report directly to the appropriate field manager in the OPO.
The Regional Attorney, a non-SES position, reports to the OGC on issues relating to litigation, and reports to the OPO Director and the District Director of the particular field office on all non-litigation issues. (Stip. 16.) The Regional Attorney is responsible for litigating cases. The Regional Attorney and the District Director, in conjunction, determine whether to recommend filing a civil action. The Regional Attorney then presents the EEOC's recommendation to the Commissioners in a memorandum, for which he and the District Director share responsibility. (Id.)
Currently Regional Attorney of the EEOC's Memphis field office, Terry received his J.D. degree from Loyola University in New Orleans in 1965, and upon graduation, worked for the Civil Rights Division of the United States Department of Justice on voting rights. (Tr. 11-14; See Ex. 87 for Terry's curriculum vitae.) In 1969, Terry became Regional Counsel for Equal Opportunity at the Department of Housing and Urban Development, and in 1970, he worked as the EEOC's Regional Counsel in Atlanta. (Tr. 15-17.) In 1972, plaintiff became acting Regional Attorney of the Atlanta Litigation Center;
While in the CDP, plaintiff worked as (1) Assistant Director of the Alaska Human Rights Commission, from July to September 1981, (2) Assistant to the Director of the NLRB's Memphis office, from April to June 1982, and (3) Director of Region III of the OPO from March to July 1983. (Stip. 33-35.) At the NLRB, plaintiff fully participated in the case management process. (Tr. 43; Fleischut dep. 6-7.) As Director of Region III, plaintiff supervised seven District Directors. (Tr. 44-45.)
On June 27, 1983, plaintiff graduated from the CDP, at which time OPM certified him, until June 27, 1988, as having satisfied the executive qualifications required for the SES. (Stip. 39.) While certified, plaintiff could be selected non-competitively; once his certification had expired, he could only be promoted to the SES by applying and competing for an announced position. (Id.) Effective January 1, 1994, plaintiff's certification was reinstated through December 31, 1996. (Stip. 40.)
On March 3, 1984, Chairman Thomas appointed plaintiff acting District Director in Memphis. (Stip. 41.) Terry remained in
Since October 1, 1984, Troy as Director of the OPO has signed in concurrence all of plaintiff's performance evaluations. (Stip. 26.) Similarly, Troy has reviewed elements of plaintiff's job duties relating to administration, personnel, employee relations, collective bargaining, budget, travel and legal unit compliance interaction. (Id.) Plaintiff's performance evaluations at the EEOC have all been at the highest of five levels, "outstanding," or at the second highest level, "highly effective."
II. APPLICABLE LAW
Title VII of the Civil Rights Act of 1964 provides in relevant part:
42 U.S.C. § 2000e-2(a). Title VII also provides:
42 U.S.C. § 2000e-3(a).
In bringing a discrimination claim, the first step for an employment discrimination plaintiff is to establish a prima facie case of discrimination. The burden of proof to establish a prima facie case lies exclusively
Since the plaintiff in this case is relying on indirect evidence, he must initially establish a prima facie case, thereby creating a rebuttable presumption of discrimination. To establish a prima facie case of intentional discrimination based on failure to promote, a plaintiff must establish each of the following elements: (1) he is a member of the protected class; (2) he was qualified and applied for a promotion; (3) despite his qualifications, he was denied the promotion; and (4) the employer filled the position with another person who was not a member of the plaintiff's protected class. McDonnell Douglas, 411 U.S. at 802, 93 S.Ct. at 1824 (setting forth criteria for a plaintiff who brings an illegal discharge claim); Burdine, 450 U.S. at 256, 101 S.Ct. at 1095 (applying the McDonnell Douglas factors to discriminatory failure to promote); Mitchell v. Toledo Hosp.,
In a retaliation claim, a plaintiff alleges that he has been mistreated for engaging in protected activity, and that the employer's motivations are therefore illicit. As with a race or sex discrimination claim, the ultimate burden of proving retaliation in a Title VII action remains at all times with the plaintiff. Wrenn v. Gould,
In order to satisfy the causal-link element of the prima facie case requirement, a plaintiff must produce evidence "sufficient to raise the inference that [the] protected activity was the likely reason for the adverse action." Zanders, 898 F.2d at 1135. The mere fact that a plaintiff suffers an adverse employment action subsequent to his participation in protected activity is insufficient to establish the fourth element of the prima facie case requirement. Cooper v. City of North Olmsted,
Assuming plaintiff meets his prima facie case of discrimination or retaliation, the burden of production, not persuasion, shifts to defendant to articulate a legitimate non-discriminatory reason for its action. Burdine, 450 U.S. at 254, 101 S.Ct. at 1094; Wrenn, 808 F.2d at 501; Zanders, 898 F.2d at 1134 (stating that the sequence and burden of proof applicable to disparate treatment
Although the burden of production shifts to the defendant, the burden of persuasion always remains with the plaintiff. Mills v. Ford Motor Co.,
The Title VII plaintiff at all times carries the ultimate burden of proving that the proffered reasons are pretextual and that the adverse employment action is the product of an intent to discriminate because of the plaintiff's race. Id.; Galbraith v. Northern Telecom, Inc.,
The plaintiff has "`a full and fair opportunity to demonstrate' through presentation of his own case and through cross-examination of the defendant's witnesses, `that the proffered reason was not the true reason for the employment decision' ... and that race [or sex] was." St. Mary's Honor Center, 509 U.S. at 515-17, 113 S.Ct. at 2752 (quoting Burdine, 450 U.S. at 256, 101 S.Ct. at 1095). Proof of pretext can occur throughout the trial. Ford v. Nicks,
The central claims raised by plaintiff involve the Atlanta selection in 1984, the Indianapolis selection, the Detroit District Directorship offer, the 1991 Seattle and Charlotte selections, and the Deputy General Counsel selection. The Court's discussion will focus on these claims, and include other selections raised in plaintiff's complaint to the extent they supplement or explain the above mentioned claims. This action turns on defendant's motivations for plaintiff's non-selection. For this reason, the Court's Opinion requires a lengthy factual analysis.
A. Plaintiff's History of Non-Selection at the EEOC
Terry has sought, but has not achieved, placement in the SES since 1981. (Tr. 39.) He alleges that he has not been placed into
In 1981, plaintiff competed for admission to the CDP, believing that successful completion would improve his chances of obtaining an SES position. To support the reasonableness of this belief, plaintiff introduced a letter to the Commissioners from Beverly Gary, Director of Personnel, which states, "[c]ompletion of this program satisfies all requirements for certification by a qualified review board and permits graduates to enter non-competitively any SES position for which he or she is technically qualified." (Tr. 40; Stip. 31; Ex. 1.) Sandate confirmed the reasonableness of Terry's belief that graduation from the CDP most likely would result in
On March 3, 1984, plaintiff was appointed acting District Director of the Memphis EEOC office. At the time of this appointment, the overall performance of the Memphis District Office was poor and the morale of the staff low. (Tr. 443; Stip. 42.) Odessa Shannon, then Director of OPO, urged Terry to take the position, stating that Terry was the only person in the EEOC at that time qualified to keep the Memphis office together. (Tr. 76.) Terry accepted a temporary placement, but told Joseph Stanley Bennett, then Regional Director of Region II in OPO, that he was interested in a permanent District Directorship in Atlanta or St. Louis. (Tr. 77, 91.) During his one-year period as acting District Director, plaintiff's pay did not increase, but he was held to the same standards and expectations as a District Director. (Tr. 81-82.) Applying these standards, plaintiff performed well and improved the Memphis office. (Tr. 444.)
In 1984, while plaintiff was acting District Director of the Memphis District Office, the following four SES District Director vacancies were announced: (1) Memphis; (2) St. Louis; (3) Atlanta; and (4) Cleveland. Plaintiff submitted an SF-171 form, with a cover letter expressing interest in the Memphis District Directorship. (Tr. 83; Ex. 44.) Plaintiff did not apply for the other available District Directorships in part because he believed he would be appointed Memphis District Director as a result of his present good performance in that office. (Tr. 91-92; Ex. 44.) Similarly, he believed Harold Ferguson, then Deputy Director in Cleveland would be appointed District Director of the Cleveland office, and Harris Williams, then acting District Director of the Atlanta office, would be appointed to the Atlanta Directorship.
Plaintiff was not selected for any of the four District Directorships.
Williams served as Charlotte District Director before the EEOC's reorganization in 1979, served as the Deputy Director in Charlotte and Detroit, and as acting District Director of Atlanta. (Tr. 1098-1100; Ex. 51.) Ferguson served as Deputy Director in Cleveland for several years before his appointment to the SES. (Tr. 61, 495-96.) Unlike plaintiff, Williams never held any rank above a GS-15 before his appointment to the Atlanta District Directorship, had not completed the CDP, had not graduated from high school, had been found by a federal district judge to have retaliated against a union official for processing sexual harassment charges, and had been found to lack credibility as a sworn witness by that same
On November 25, 1985, plaintiff submitted a SF-171 in which he stated his interest in the District Directorships in St. Louis, Charlotte, Philadelphia and any "other" SES positions. (Tr. 135-36; Stip. 50; Ex. 79.)
In January 1986, Sandate telephoned plaintiff and initiated a discussion regarding plaintiff's terms for settling his May 6, 1985, EEO charge. (Tr. 145, 569, 576; Ex. 14.) Troy had authorized Sandate's negotiations with Terry, and had specifically asked Sandate to determine what District Directorship Terry desired. (Tr. 575-76, 578.) Plaintiff told Sandate that he was interested in all pending SES vacancies except Detroit. (Tr. 146, 578-79.) Sandate remembers reporting this conversation to Troy, and specifically recalls telling Troy that plaintiff expressed interest in the St. Louis and Indianapolis positions. (Tr. 579-80.) Troy testified that he does not recall being informed by Sandate that Terry was not interested in the Detroit Directorship.
In February 1986, Bennett offered Terry the District Directorship of EEOC's Detroit office. (Tr. 147, 454-58; Stip. 52; Ex. 98.) Terry explained to Bennett that the Detroit Directorship was the only District Director vacancy for which he had expressly stated disinterest, and reiterated his interest in all other SES vacancies. (Tr. 147.) Bennett recommended that Terry accept the selection because the Detroit office needed his legal skills, and Detroit was the only offer of a District Directorship that plaintiff would receive at that time. (Tr. 147-48.)
Concerned that defendant would excuse subsequent non-selection to the SES on his rejection of the Detroit offer,
At the time Terry declined the offer, he reiterated his interest in the other available Directorships to Bennett by telephone and letter. (Tr. 155, 457; Stip. 53; Ex. 97.) Plaintiff had no further contact with Bennett regarding the positions. (Tr. 137-38; Stip. 54; Ex. 65.)
On February 20, 1986, plaintiff applied for the Indianapolis District Directorship, emphasizing in his cover letter that, as a CDP graduate, he was not required to apply. (Id.) The Indianapolis position was subsequently cancelled. (Id.) In October 1986, the Indianapolis Directorship was announced for a second time. (Stip. 55.) On November 4, 1986, plaintiff again applied and stated his eligibility for non-competitive placement. (Tr. 158-159; Ex. 66.) On April 3, 1987, the position was cancelled again. (Stip. 55; Ex. 78.) On May 8, 1987, the Indianapolis position was announced for a third time. (Tr. 160; Stip. 55; Ex. 64.) Plaintiff did not
Plaintiff's OPM certification expired in June 1988, and around 1989, plaintiff ceased applying to or expressing interest in any SES openings. (Tr. 166; Stip. 39.) On April 17, 1991, he applied for the Charlotte District Directorship. (Stip. 63; Ex. 71.) On June 7, 1991, plaintiff wrote to Kemp expressing interest in the Atlanta District Directorship. (Tr. 178; Ex. 54.) The Charlotte vacancy was subsequently cancelled. On June 18, 1991, two African-Americans were non-competitively selected to fill the vacancies.
In 1991, plaintiff and Janet Leino, a white female, applied to the Seattle District Directorship; both were on the certification list for that position. (Ex. 95.) Leino had served as Seattle District Director, at a GS-15 level, since 1988, and had received highly effective performance ratings for fiscal years 1989 through 1991.
On May 28, 1992, Terry and James Neely, a black male, applied for the position of Deputy General Counsel. (Stip. 71; Ex. 111, 116.) Neely was not a CDP graduate, had slightly lower evaluations, experience, and responsibilities than plaintiff. (Tr. 198-99.) Neely graduated from law school in 1972, at which time plaintiff was already directing the Atlanta litigation center. (Tr. 193.) At the time of his application for Deputy General Counsel, Neely was serving as acting Deputy General Counsel, to which position he was appointed on December 5, 1991. (Stip. 73; Ex. 117.) Plaintiff argues that Neely's appointment as acting Deputy General Counsel constitutes discriminatory preselection, constructed to make Neely the more qualified candidate at the time of selection for the Deputy General Counsel position. The Deputy General Counsel Ratings Panel rated Neely slightly higher than plaintiff. (Tr. 717-20; Ex. 109.) On July 6, 1992, Neely was appointed Deputy General Counsel. (Stip. 74.)
B. Credibility Assessment of James Troy
James Harrison Troy has been employed at the EEOC since August 8, 1978, in the SES since January 28, 1980, and as Director of OPO since October 1, 1984. (Tr. 1028-29.) Evaluating his testimony is central to the Court's analysis in this matter because Troy had extensive power and discretion in selecting SES officials. Further, defendant's proof of its legitimate non-discriminatory reasons for the District Director selections rests almost exclusively on Troy's testimony, particularly with regard to the Atlanta, Indianapolis, Charlotte and Seattle positions.
As Director of OPO, Troy selected the vast majority of SES officers, and all but five of the present District Directorships have been filled by Troy. (Tr. 1082, 1166-73, 1187-88.) With only one exception, Justice Thomas in his capacity as Chairman followed Troy's appointment recommendations, and Chairman Kemp has followed all of Troy's recommendations.
Troy was impeached on a number of issues, some material in this case and others tangential to the case but significant in their reflection on the credibility of Troy's testimony. In response to defense questions regarding his testimony on direct, at deposition, and in other cases, Troy admitted that his prior testimony "directly contradicts,"
On direct examination, Troy characterized his role as one removed from decision-making responsibility, and without access to material used in making SES selections. However, the evidence shows that, as a general rule, Troy was notified concerning significant submissions or other occurrences regarding SES positions,
At trial and at deposition, Troy testified that he has never, in his ten years as Director of OPO, interviewed applicants for SES positions. (Tr. 1292.) In Stern, Troy testified that he had "interviewed the people on the certificate of eligibles."
Particularly problematic is Troy's testimony regarding cancellations of vacancy announcements. The testimony is significant because two Indianapolis vacancies to which plaintiff applied were cancelled, and the 1991 Charlotte vacancy was cancelled after plaintiff applied and his name appeared on the best qualified list. At trial, Troy testified that he had never cancelled a vacancy because a candidate he did not wish to select was listed as best qualified. (Tr. 1334-35.) However, this testimony was contradicted by his own prior testimony in Cole.
In Cole, Troy testified that he had cancelled vacancy announcements in Detroit and Charlotte because he did not like the people whose names appeared on the certificate list. (Tr. 1336-38.) When cross-examined about this testimony, Troy stated that while he had cancelled the Charlotte vacancy after the certification list had been produced, he had not viewed that list at the time of the cancellation. (Tr. 1338-39.) However, this testimony is contradicted by Troy's own sworn testimony in Cole,
At trial, Troy explained that the second vacancy in Indianapolis was cancelled in order to reassign Constance Dupre to Indianapolis from headquarters in Washington D.C. (Tr. 1122.) However, Dupre resigned from the EEOC on February 6, 1987, and the Indianapolis announcement was not cancelled until April 3, 1987. (Dupre dep. 46.) Thus, Troy's given reason for the second Indianapolis vacancy is not believable.
Troy testified that he had never transferred an employee with the goal of compelling that employee to retire. (Tr. 1220-21.) However, he was contradicted on this point by Bennett, Grabon, Dupre, and Muse.
In a signed declaration submitted in Cole, Troy stated that Jackie Shelton was hired by the EEOC because she had NLRB experience.
On direct examination, Troy testified that he was not sure whether Terry's name appeared
In a counselor's survey report investigating plaintiff's EEO claim of non-selection for Atlanta and Cleveland,
At trial, Troy stated that Terry's refusal of the Detroit offer demonstrated Terry's inflexibility, and was the reason Troy did not consider plaintiff for future non-competitive selections. (Tr. 1247-48.) At deposition, Troy testified that Terry's refusal of the Detroit offer had no impact on his consideration of Terry for competitive or non-competitive selection. (Tr. 1249.)
Troy testified that he had never requested from the Chairman a pay rate higher than an ES-4 for a new SES appointee. (Tr. 1227.) On cross-examination, he was impeached with evidence he had recommended the appointment of Pedro Esquivel to the SES, at an ES-5 level. (Tr. 1232-33.) Troy stated that he could not recall appointing Esquivel to an ES-5, nor could he recall having any conversation with Bennett regarding Terry's appointment level for the Detroit Directorship. (Tr. 1233.) Bennett stated that he specifically recalled Troy refusing to pay Terry above an ES-4. (Tr. 457.)
In a declaration, Troy stated that Janet Leino was hired into the District Directorship of Seattle from the NLRB in July 1988. (Tr. 1288; Ex. 211.) He admitted at trial that this was a false statement. (Tr. 1290-91; Ex. 212.) With regard to the Seattle selection, Troy testified that he merely concurred with the recommendation of Leino by Paula Choate, then OPO West Field Manager. (Tr. 1136, 1349-50.) Choate testified that she had no involvement in Leino's selection. (Choate dep. 5-7.) Choate's testimony was clearly credible on this point, and confirms Troy's involvement as selecting official for the Seattle District Directorship.
At trial, Troy denied referring to Terry as a "racist." (Tr. 1046-47.) Bennett and Schutt testified that Troy called Terry a racist on several occasions.
As a general rule, the Court cannot rely on Troy's testimony for factual information necessary
C. Claim I, The Atlanta and Cleveland District Directorships
Plaintiff's first claim involves his non-selection for the SES District Directorships in Atlanta and Cleveland in 1984. At that time, plaintiff had CDP certification and thus, was eligible for non-competitive selection to the SES. The Court's analysis of this claim focuses on the Atlanta District Directorship, concerning which the bulk of evidence was presented.
At the close of plaintiff's case in chief, the Court found that plaintiff had demonstrated a prima facie case of race discrimination as to all his claims. As a white male, plaintiff was a minority within the upper levels of EEOC management.
Insufficient evidence was presented at trial to support a finding of retaliation under Section 704(a). Plaintiff was a Jurgens class member and filed an EEO charge of discrimination as to the Memphis selection in 1984, before the Atlanta and Cleveland selections. However, Troy testified that he did not know that plaintiff had filed these claims, and plaintiff failed to introduce any evidence to the contrary.
As plaintiff established a prima facie case of race discrimination, the burden of production shifts to defendant to show a legitimate non-discriminatory reason for its action. Defendant argues, supported by the testimony of Bennett and Troy, that plaintiff was not considered for either position because he did not apply. (Tr. 495, 1097.) Defendant also states that both persons selected were well qualified for the position to which they were appointed: Williams performed well as Deputy District Director in Charlotte and Detroit, and as acting District Director in Atlanta; Bennett recommended Ferguson, and Troy concurred, based on Ferguson's service as Deputy Director in Cleveland for the previous several years. (Tr. 495-96, 1098-1100.) These arguments suffice to satisfy defendant's burden of production.
For his discrimination claim to succeed, plaintiff must show that defendant's proffered reasons are pretextual. Disbelief of the employer's asserted legitimate reason for the challenged action does not necessarily entitle plaintiff to a judgment as a matter of law, rather it merely permits the trier of fact to infer the ultimate fact of intentional discrimination. St. Mary's Honor Center, 509 U.S. at 510 n. 4, 113 S.Ct. at 2749 n. 4. Plaintiff must show that defendant's proffered reason is false and that the true reason for the adverse action is discrimination. Id.
1. Failure To Apply
Defendant rests the weight of its explanation for plaintiff's non-selection on Terry's failure to apply. The Court finds that this proffered reason is pretextual.
Defendant cites case law for the proposition that, in any employment discrimination case based on failure to promote, the threshold requirement is that the employee apply for the position sought. Williams v. Hevi-Duty Electric Co.,
Defendant argues that only two exceptions to the application requirement exist, neither of which plaintiff meets. First, victims of "gross and pervasive discrimination" can argue that futility prevented their application. International Brotherhood of Teamsters v. United States,
The Court need not reach the question of whether plaintiff meets either of these exceptions, as the cases requiring application are distinct from the present matter. The CDP admits few people (only ten persons have graduated from the Program since its inception). Admission and successful completion carry certain benefits which make the CDP graduate distinct from non-graduate employees, including the privilege to be promoted to the SES without having to apply.
Defendant argues that neither Troy nor Bennett was aware that Terry could be selected without applying for the position, and that Terry's application for the Memphis District Directorship indicates that plaintiff knew that he was required to apply for SES positions. (Tr. 495, 1097-98.) These proffered reasons are pretextual.
The facts establish that the selection, participation, and graduation of plaintiff (and Blumenthal) from the first CDP class was widely known and publicized within the EEOC. (Tr. 566, 577, 1454.) Sandate characterized plaintiff's graduation as a "big deal" within the agency at the time.
Terry's application only for the Memphis District Directorship does not indicate that he believed application was required, nor that he was interested in the Memphis position to the exclusion of all others. It merely signifies Terry's preference for placement in Memphis.
Although it was Troy's practice to make written recommendations on SES promotions (he specifically recalled making one for Atlanta), little written documentation of the Atlanta and Cleveland selections remains. (Tr. 1112, 1307-09.) As a general rule the EEOC's retention policy mandates that all records be destroyed within two years; however, in cases where a complaint is raised concerning an EEOC employment decision, the policy requires that all applications or other relevant records be kept during the pendency of an EEO charge or lawsuit. (Tr. 1308, 1365-66.) As plaintiff raised a complaint as to all selections at issue in this case within two years of his non-selection, defendant was bound to retain the records through the pendency of this lawsuit. Lack of their retention allows the Court to draw an adverse inference that such documents would have supported plaintiff's claim. Hicks v. Gates Rubber Co.,
The evidence is clear that as a CDP graduate, Terry was not required to apply to either the Atlanta or Cleveland District Directorship. It is not credible that Troy did not know plaintiff could be non-competitively selected. Contrary to defendant's assertion, as the defacto SES selecting official, Troy reviewed applications for SES positions, knew plaintiff was on the Atlanta certification list, and knew that plaintiff had graduated from the CDP. While defendant is correct that CDP graduation imposes no requirement on the EEOC to non-competitively promote a graduate, graduation makes non-competitive selection possible, or even probable, as maintained by Justice Thomas, Sandate and plaintiff.
2. The 1984 Non-Selections
In employment discrimination cases, the relevant issue for the court to
"A reason is legitimate for purposes of the civil rights laws if it is nondiscriminatory, even if it is mean-spirited, ill-considered, inconsistent with humane personnel policies, or otherwise objectionable." Galbraith, 944 F.2d at 282.
Defendant maintains that plaintiff's non-selection was due at least in part to his lack of service under Troy in the OPO or at headquarters in D.C. Troy argued at trial that the Deputy Director position (held by Williams and Ferguson) provided better training for a District Directorship than did the position of Regional Attorney (held by plaintiff), and that he made hiring decisions with this preference in mind. (Tr. 1256.) If plaintiff's non-selection was due to his lack of experience at headquarters, his absence of service under Troy, inadequate experience, Troy's belief that Terry lacked appropriate judgment, or even because Troy did not personally like plaintiff (which defendant does not allege),
None of the above proffered reasons appear truthful. First, Williams did not work at headquarters or at OPO; he did work under Troy at Charlotte, but Troy's knowledge of Williams' work logically should operate against Williams' appointment, as during that time, Williams was found guilty of illegal retaliation against another EEOC employee. Ferguson neither worked at headquarters, nor under Troy. Second, Troy's stated preference for Deputy Director experience is inconsistent with his 1984 recommendation (to which he admitted on cross-examination), that the Deputy Director position be phased out and their functions assumed by Regional Attorneys. (Tr. 1257.) Third, Terry's EEOC experience was not limited to being Regional Attorney; he served as acting District Director just prior to the Atlanta and Cleveland selections. All evidence confirms that Terry was highly regarded as a capable employee, well qualified for the SES. Troy's repeated testimony that he respected plaintiff's professional capabilities is significant given Troy's extensive knowledge of plaintiff's job performance as signatory on performance evaluations of plaintiff. (Stip. 26.)
Troy had only one professional criticism of plaintiff,
While plaintiff's superior qualifications do not in themselves constitute a violation of Title VII because management is free to choose among qualified candidates, the
While deference should be accorded employers' selections of employees, particularly those placed in management positions, deference cannot operate to permit all management selection decisions, irrespective of evidence of illegal motivations. The totality of the evidence persuades this Court that defendant's proffered explanations are pretextual and the adverse employment actions against plaintiff were based on racial discrimination.
D. Claim 2. The Indianapolis, Charlotte, St. Louis and Philadelphia Selections
In assessing plaintiff's second claim, the Court examines evidence presented at trial regarding the motivations behind the 1986 offer of the Detroit District Directorship, and the motivations behind the cancellations of the Indianapolis District Directorship in particular. A finding of discrimination or retaliation is a finding based on the totality of the evidence. Ford,
Plaintiff has not established a prima facie case of discrimination as to the Indianapolis
However, plaintiff has demonstrated a prima facie claim of retaliation as to Indianapolis and Charlotte. The evidence is uncontroverted that, by March 1985 (before all selections considered in this section),
1. The Detroit Offer
On February 19, 1986, plaintiff was offered the Detroit Directorship, and on February 24, 1986, plaintiff refused the offer. (Ex. 97-98.) The Detroit offer provides evidence of defendant's motivations with respect to subsequent non-selections.
The question presented by the Detroit offer and refusal is whether the offer was contrived by Troy or any other EEOC selecting official, in full knowledge that plaintiff would turn down the offer, for the purpose of creating a legitimate non-discriminatory reason or excuse for plaintiff's non-selection for future SES vacancies. Defendant now argues only that plaintiff's refusal impacted non-competitive selections.
Troy stated that he did not recall Sandate informing him of Terry's disinterest in Detroit. The credible testimony, however, was given by Sandate. Sandate testified that he specifically repeated his conversation with Terry to Troy. Thus, Troy knew Detroit was the one SES vacancy Terry did not want.
Defendant argues that, even if Troy was aware of Terry's expressed disinterest in Detroit, the appointment was appropriate because employee placement desires do not determine selections. According to Troy, placement decisions rest primarily on where an employee's skills would be most useful to the agency, and any personal preferences are at most secondary and usually outweighed. Lack of consideration for plaintiff's personal desires does not constitute a violation of Title VII. Galbraith, 944 F.2d at 282. Nonetheless, lack of consideration does raise concerns about motivation, particularly where, as in this case, the lack of consideration for an employee's preferences is unusual. The EEOC did not move most SES managers, the OPM handbook does not require all SES members to be mobile, and on several occasions, the EEOC actively accommodated the desires of EEOC managers requesting certain geographical placements for personal reasons.
Relying on Troy's testimony, defendant also argues that Terry was an ideal choice for the Detroit Directorship because Terry was a CDP graduate, had served in a highly effective manner as acting District Director, and was a skilled lawyer, of which Detroit had particular need.
Finally, it is not credible that Troy had no knowledge of the 1982 Ford Motor Company decision
For all the above reasons, the Court finds that the Detroit District Director offer was made in bad faith.
2. The Cancellations
On February 20, 1986, plaintiff applied for the Indianapolis vacancy, which was subsequently cancelled. On December 4, 1986, plaintiff applied for the Indianapolis District Directorship, pursuant to a second vacancy announcement. This vacancy was also cancelled. By the time a third vacancy was announced on May 8, 1987, plaintiff believed any application would be futile and did not apply again. (Tr. 160-61.) On November 25, 1985, plaintiff submitted an SF-171 stating his interest in the District Director vacancies in St. Louis, Charlotte, Philadelphia, and "other" SES positions. (Stip. 50; Tr. 135-38; Ex. 79.) The Charlotte and St. Louis vacancies were subsequently cancelled. (Tr. 155.)
As a threshold matter, defendant argues that application to the third Indianapolis vacancy was not futile. The doctrine of futility applies where the employer's practice is gross and pervasive. See e.g., Teamsters,
The EEOC may cancel vacancy announcements for a number of reasons, including budget considerations, staffing factors, and training opportunities. (Tr. 1077-79, 1422.) The motivation behind a vacancy cancellation determines whether the agency's action violates Title VII. Defendant argues that the first Indianapolis vacancy was cancelled to provide headquarters personnel with field experience, and the second was cancelled so that Dupre could be reassigned from headquarters to Indianapolis. (Tr. 1121-22.) Defendant also maintains that Troy was not aware that plaintiff had applied for either vacancy. (Tr. 1121-23.)
The evidence does not support these contentions. First, the initial vacancy for Indianapolis lasted for a total of two years during which headquarters personnel served no more than six months in total as acting District Directors. (Vlantis dep. 8-11.) Second, the announcement of the vacancy for a second time is inconsistent with an EEOC goal to place headquarters personnel in temporary positions in that office. (Tr. 1122.) Third, Dupre resigned from the EEOC two months before the second vacancy was cancelled and thus, could not be the reason for its cancellation. (Dupre dep. 46.)
All explanations proffered by defendant are pretextual. The Court holds that the bad faith offer of Detroit coupled particularly with the Indianapolis vacancy cancellations following plaintiff's applications indicates that defendant offered and withdrew positions in illegal retaliation against plaintiff.
E. Claim Three, Seattle, Atlanta and Charlotte
Plaintiff's five year certification for noncompetitive placement expired on June 27, 1988. Plaintiff applied for the Seattle, Charlotte and Atlanta District Directorships after this period, and therefore was eligible only for competitive selection to these positions.
As determined in the previous claims, Troy had knowledge by 1985 that plaintiff had raised complaints against the EEOC; by 1988 (if not earlier), Troy knew that plaintiff had named him specifically as a discriminating official. (Tr. 1195-1203; Ex. 1, 3, 14.) Kemp, newly appointed as Chairman of the EEOC, also knew of plaintiff's complaints against the EEOC because Terry wrote to Chairman Kemp in 1990, attempting to resolve his EEO complaints. (Tr. 178-79, 185-86; Ex. 8, 9.)
Again, in determining these and other claims raised by plaintiff, the Court examines the totality of the evidence, evaluating each non-selection in the context of other selection decisions since Terry's employment at the EEOC. The Court's discussion as to this claim focuses on the Seattle and Charlotte District Directorships.
Plaintiff has established a prima facie case of race and sex discrimination as to his non-selection for the Charlotte District Directorship. On April 17, 1991, Terry applied to the Charlotte District Directorship, and on May 14, 1991, ERB submitted to Troy a certificate of eligibles containing plaintiff's name. (Ex. 72, 73.) The position was subsequently cancelled, and on June 18, 1991, Troy
Plaintiff has established a prima facie case of sex discrimination for the Seattle position. He applied for and was qualified for the position, and a white female was appointed. (Ex. 95.) In 1987, Leino held only a GS-12 and as such was ineligible for SES selection. (Muse dep. 33-36.) That year, the Seattle District Director position was downgraded from an SES position to a GS-15 position in order to allow for Leino's selection in 1988. (Muse dep. 34-35.) In 1991, Kemp approved the upgrade of the Seattle position to an SES level, at which time both plaintiff and Leino were eligible and applied for the job, and both were placed on the certification list. (Tr. 1349.) On July 24, 1991, Troy recommended Leino as District Director of the Seattle EEOC office. (Ex. 89.)
Defendant satisfied its burden of production by articulating a legitimate nondiscriminatory reason for Leino's selection; namely, her record as a manager of the Seattle office who could perform her job in a highly effective manner. Plaintiff argues that he had a greater range and length of experience than Leino at the time of her selection, which contention is supported by the higher rating given to plaintiff than to Leino by the Seattle District Director Ratings Panel. (Admission No. 24.) Nonetheless, Leino's experience in the Seattle office makes her well-qualified for the position, and defendant is not required to select the most objectively qualified candidate. (Ex. 94; Wrenn, 808 F.2d at 502.) The issue for this Court is whether her qualifications motivated her appointment, or whether illegal motivations were behind plaintiff's non-selection.
At trial, Troy attempted to distance himself from any responsibility for the Seattle appointment, testifying that Choate screened the applications for Seattle and selected Leino; he testified that he simply approved Leino's recommendation. (Tr. 1136.) Troy then contradicted his direct testimony, stating on cross-examination that he considered plaintiff for the position, but concluded that Leino was the best person for the job given her three years of experience in Seattle. (Tr. 1349.) Similarly, Choate contradicted Troy, stating she made no recommendations concerning the Seattle selection. (Choate dep. 5-7.)
The initial downgrade and subsequent upgrade of the Seattle District Directorship to secure the placement of Leino is another example of Troy's control over selections, to maneuver the placement and non-placement of certain individuals. Also, as discussed above, Troy was impeached at trial with his testimony in Cole, in which he admitted cancelling the Charlotte District Director vacancy after the certificate of eligibles with plaintiff's name was produced. (Tr. 1335-39.) By reassigning a present SES official (Marsha Drane), Troy could circumvent the entire certificate of eligibles review, and thus, plaintiff's application. Defendant does not explain the reason for the Charlotte vacancy cancellation, except to deny that Troy knew that plaintiff's name was on the certification list for Charlotte. As discussed above, this testimony is not credible and is contradicted by Troy's own testimony.
In the context of all evidence presented in this case, the evidence regarding the Seattle and Charlotte District Director selection supports plaintiff's claim of discrimination and retaliation. While the evidence is not so clear that the Court can conclude with certainty that the adverse employment action occurred only from race discrimination, from sex discrimination, or from illegal retaliation, independently, the totality of all the evidence, direct and circumstantial, persuades the Court that the adverse employment actions against the plaintiff were based on a combination of reasons based on race, gender, and retaliation. See Few v. Yellow Freight System, 1986 WL 6871, *12 (N.D.Ohio 1986).
F. Claim Four, Deputy General Counsel
In 1992, Terry and Neely both applied for the SES position of Deputy General Counsel, and Neely was selected. Plaintiff has established a prima facie case of discrimination and retaliation. As to his race discrimination claim, plaintiff applied, was qualified, and a black male was appointed. As to his retaliation claim, Livingston knew that
Defendant argues that, although Livingston felt Neely and plaintiff had comparable qualifications, Livingston was more comfortable with the judgment of Neely than with that of plaintiff, and consequently selected Neely for acting Deputy General Counsel and for Deputy General Counsel. (Id. at 109-10.) Specifically, Livingston testified that he and plaintiff had different legal perspectives and analyses of two cases, Mead and Northwest Airlines.
Evidence of preselection operates to discredit the employer's proffered explanation for the decision. Goostree v. State of Tennessee,
The Court first considers evidence regarding Livingston's disagreement with plaintiff's judgment. Livingston testified that his discomfort with plaintiff's judgment emanated from plaintiff's case submissions, referenced in plaintiff's 1991 interim appraisal. The appraisal criticizes plaintiff's cause recommendations,
Grabon and a federal judge agreed with plaintiff's assessment of Mead; Grabon and Carson Owen, Senior Trial Attorney with the EEOC, agreed with plaintiff's assessment in Northwest. (Tr. 401-16, 2073; Ex. 170, 170A, 170B.) Although Terry's position was supported by persons in authority knowledgeable
Livingston, Sklover (Neely's supervisor from 1985 to 1992, and plaintiff's supervisor from 1985 to the present), and Rowe all testified that plaintiff would make a good Deputy General Counsel. (Tr. 719-21, 1683; Livingston dep. 34.) According to Sklover, once Neely was appointed acting General Counsel, Neely was in serious contention for permanent appointment to the Deputy General Counsel position:
(Tr. 1691-92.) Rowe testified that the central factor considered by the rating panels was Neely's experience as acting Deputy General Counsel. (Tr. 719-21.) Had Neely not served as acting Deputy General Counsel, Rowe would have rated Terry the stronger candidate because Terry's qualifications were otherwise objectively superior. (Id.) Livingston did not know whether Neely would have been on the certificate of eligibles list if he had not performed as acting Deputy General Counsel. (Tr. 159.) Livingston did feel that Neely's experiences as acting Deputy General Counsel made Neely a better candidate than he had been before the appointment. (Id.) During Neely's period in the acting position, Livingston discussed his vision of the General Counsel's Office with Neely; he did not have similar discussions with Terry. (Tr. 159-60.)
William Bartlett, defendant's expert, defined preselection for the Court as making the employment choice before any competition for the particular position begins. (Tr. 1434.) Preselection may be shown by a combination
Specifically, Livingston did not consult with either Bruner or Sklover, both of whom had supervised Neely, before selecting Neely for either the acting or the permanent Deputy General Counsel position. (Tr. 1668, 1690, 1695; Livingston dep. 101, 178.) Sklover testified that it was not normal procedure to make such an appointment without consulting that person's supervisor. (Tr. 1668.) Livingston also did not conduct interviews for the position. (Tr. 353.) Rowe, who considered Neely his best friend at the agency (which friendship was well known throughout the EEOC), was selected as a member of the Deputy General Counsel ratings panel. This was his first and only appointment to a ratings panel. (Tr. 705-07.)
Rowe testified that at the time Livingston appointed Neely acting Deputy General Counsel, the general view at the EEOC was that Livingston, a white male, needed to appoint a minority since he had just removed two minority Associate General Counsels. (Tr. 711.) Rowe stated that Neely believed race to be a factor in his selection. (Id.).
The Court finds that this evidence of racebased selection, Livingston's failure to consult Neely's immediate supervisors about Neely's qualifications (particularly in light some concerns with Neely's record), Rowe's placement on the selection panel,
"Federal agencies such as defendant EEOC are under a particularly compelling mandate to adhere strictly to the requirements of Title VII." Berio v. EEOC, 1979 WL 127, *6 (D.D.C.1979.) When the agency fails to meet the standards and values in which it has been entrusted, and violates Title VII, the statute provides for back pay and other equitable relief to be given by the discriminatory employer
Albemarle Paper Co. v. Moody,
The following categories of relief are necessary in order to remedy the Title VII violations by the EEOC in this case: (1) placement in the SES; (2) compensatory damages; (3) reimbursement of medical expenses and payment of medical expenses for the upcoming year; (4) injunctive relief; (5) reasonable attorney's fees and expenses; and (6) back pay, bonuses, and benefits. As set forth below, this Opinion awards plaintiff all the above forms of relief, except back pay, bonuses and benefits.
A. Damages Awarded Plaintiff
1. Placement in the SES
It is ORDERED that the defendant Equal Employment Opportunity Commission shall place plaintiff in an SES position. If the parties are unable to agree on an appropriate SES position, then plaintiff shall choose one of the next three SES vacancies.
From the date of this Opinion until plaintiff's placement in the SES, plaintiff shall be paid as an SES officer, at a rate of an ES-6. Plaintiff should be placed into the SES at an ES-6 level when a position becomes available. Given that plaintiff was offered an ES-4 for the Detroit Directorship, and calculating a reasonable pay increase for plaintiff, placement at an ES-6 level is appropriate.
2. Compensatory Damages
The Civil Rights Act was amended in 1991, to allow compensatory damages under Title VII for violations occurring after 1991. Under Section 102(b), Entitled, "Damages in Cases of Intentional Discrimination," a Title VII plaintiff who wins a back pay award may also seek compensation for such damages as emotional pain and suffering, inconvenience, mental anguish, loss of enjoyment of life and other non-pecuniary losses. 42 U.S.C. § 1981a(a), as added by § 102 of the 1991 Act; Landgraf v. U.S.I. Film Prods,
Terry, his wife and his daughter all testified that plaintiff suffered from emotional distress, embarrassment, pain and loss of enjoyment of life as a result of being denied the position of Deputy General Counsel, which application and denial occurred after 1991. (Tr. 270-76.) Plaintiff's non-selection to this position (the final layer in a series of non-selections) led to physical manifestations of stress, such as insomnia and tension, and negatively impacted his relationship with his family. (Tr. 271, 275.) Terry's wife, Louise, testified that plaintiff was dedicated, on a personal and professional level, to achieving
Dr. Randy Dupont, plaintiff's psychologist, testified that plaintiff suffered from post-traumatic stress disorder, which condition was caused by his repeated non-selection to the SES. (Tr. 801, 845, 867-68.) Even assuming, as defendant claims, that plaintiff does not suffer from post-traumatic stress disorder, it is uncontroverted, including by defendant's own expert, that plaintiff suffered emotional distress, anxiety and depression as a result of being denied promotion to the SES.
Since 1991, plaintiff has suffered significant emotional pain, suffering, stress, loss of enjoyment of life, and detrimental impact on his career. Therefore, the Court awards plaintiff compensation for those injuries in the amount of $150,000.00.
3. Medical Expenses
Dr. Dupont became plaintiff's treating professional on February 24, 1993, and continued to treat plaintiff throughout the trial. (Tr. 788; Ex. 199.) Defendant is ordered to reimburse plaintiff's expenses for this care, and to pay for future treatment of plaintiff for one year after the Court's Opinion, at the same rate and frequency as his present treatment. Plaintiff's medical expenses up through August 31, 1994, are $3,098.14. (Ex. 199.) Plaintiff's medical expenses from September 1, 1994, through April 31, 1997, are calculated at Dr. Dupont's rate of $90.00 an hour, for two one-hour sessions per month (plaintiff's standard course of treatment). (Ex. 199A.) Accordingly, defendant is ORDERED to pay plaintiff a total of $8,858.14 to cover medical expenses.
4. Injunctive Relief
Defendant is ENJOINED from discriminating and retaliating against plaintiff. See Butler v. Coral Volkswagen, Inc.,
A copy of this Opinion shall be distributed to all SES incumbents, and posted at EEOC headquarters and at each of defendant's district offices.
5. Attorney's Fees and Expenses
The Court finds that plaintiff is the prevailing party in this matter. Plaintiff's counsel is instructed to submit evidence in support of an award for reasonable attorney's fees and expenses within 30 days of entry of the Court's Opinion.
B. Settlement Conference Ordered
The Civil Rights Act provides for back pay awards:
Civil Rights Act of 1964, § 706(g), as amended, 42 U.S.C. § 2000e-5(g). Victorious Title
Back pay awards should completely redress the economic injury claimant has suffered as a result of the discrimination. Rasimas v. Michigan Dept. of Mental Health,
Plaintiff shall receive back pay, retroactive to the first claim for which defendant is found in violation of Title VII, i.e., the Atlanta District Director selection on November 11, 1984. (Ex. 195, 221.) By agreement of both parties, the initial rate of back pay in salary shall be calculated by subtracting plaintiff's actual pay as a GS-15 from the pay for an ES-4 in Atlanta in 1984.
The parties dispute the appropriate step increases to award plaintiff. Plaintiff argues that he should receive a step increase each year subsequent to the first year concerning which the Court finds discrimination (culminating in an ES-6). Defendant argues that plaintiff's salary should be set at an ES-4 until 1991, and thereafter, be set at an ES-1. Defendant maintains that the ES-1 level is appropriate because, in January 1991, EEOC employees received a twenty-five percent pay raise, putting the ES-1 salary significantly above plaintiff's non-SES salary at that time.
Increases in pay levels are dependent upon the individual SES officer's performance, and are not standard increases.
While the Court has sufficient evidence to reach an appropriate figure for a back pay award for plaintiff, due to the passage of time between the presentation of evidence and final arguments, and the Court's Opinion, the parties are directed to settlement conference before United States Magistrate Judge Allen to be conducted within thirty days after the entry of this Opinion.
Settlement negotiations shall proceed along parameters covered in this section, and
Should the parties fail to reach a settlement figure within thirty days, the Court will hold an evidentiary hearing to supplement the record on the issue of back pay, benefits and bonuses, in light of the hiatus between the close of evidence and the filing of this Opinion. In the absence of settlement, the evidentiary hearing will be held on Friday, June 21, 1996, at 9:30 a.m. The parties will have until 4:00 p.m. that day to submit any further proof on the issue of back pay, benefits, and bonuses to make current all findings in this case.
The Court finds that defendant discriminated and retaliated against plaintiff in violation of Title VII. Defendant discriminated on the basis of race as to Counts I, III, and IV, discriminated on the basis of sex as to Count III, and illegally retaliated against plaintiff as to Counts II, III, and IV.
Defendant is hereby ORDERED to place plaintiff in the SES. Plaintiff shall have the choice of the next three SES positions that become vacant. Defendant is ENJOINED from discriminating or retaliating against plaintiff in the future, and ORDERED to pay plaintiff $150,000.00 in compensatory damages, $8,858.14 in medical expenses, and reasonable attorneys fees. The issue of back pay, benefits and bonuses is REFERRED by separate Order of Reference for settlement conference. In the event that the parties do not settle within thirty days, an evidentiary hearing will be held before this Court.
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