grew in the Directorate so that assignments could not be easily made. This resulted in her being given work below her qualifications and stimulated her resentment. Some of her failures were caused by an unwillingness to do work that was below her grade. At times she was subjected to biased, unfair evaluations and became the subject of gossip memos which even suggested, without any support whatever, that she was mentally ill. Complaints from customers of DDA were often used to downgrade her performance undeservedly because many of the difficulties were caused by inadequate support, confusing assignments or unrealistic time schedules for completing performance. Throughout this period she confronted male bosses and male evaluators and functioned in an atmosphere of sex discrimination affecting all aspects of personnel management.
The Secretary has sought to show that Ms. Copeland was not qualified to be considered for the two GS-14 vacancies advertised under Civil Service rules in 1972, the point when Ms. Copeland asserts she should have been promoted to that grade. These appointments were conducted in an atmosphere which prevented impartial choice. In each instance a male was pre-selected for the vacancy and given special experience prior to selection, and the standards were written by another male to give the pre-selectee the inside track. The extent this maneuvering had an underlying sex bias is far from clear. Civil Service procedures were followed in form, but they were meaningless as a practical matter. The GS-14 positions went to individuals who in contrast to Ms. Copeland had had practical supervisory experience.
In dealing with her back pay claim, complex problems of proof necessarily arise. Here is a female employee who admittedly functioned in an atmosphere of sex discrimination which existed over a substantial period. The Secretary has presented persuasive evidence that Ms. Copeland in spite of her admitted competence in many areas had difficulty in her day-to-day dealings with some supervisors and assistants. Some of these tensions undoubtedly arose from resistance to her sex; others reflected her manner and personality and perhaps her race.
The situation is further complicated because in fact there was no way a woman such as Ms. Copeland could have obtained training in the supervisory skills these positions required. Since training and assignment are each among the aspects of the activity infected by the pattern of sex discrimination, it becomes a close question whether Ms. Copeland's lack of advancement to grade GS-14 at this stage can be attributed in part to sex discrimination. That there were some obstacles to her advancement caused solely by her traits or factors other than lack of training is apparent but it is impossible at this stage to determine whether the views of those with whom she came in contact in her work reflect sex bias or to isolate the degree to which it can be said her deficiencies standing alone would have retarded her progress at this point.
A degree of sex discrimination always played a part in plaintiff's career. However, the record shows that in spite of this she begrudgingly was advanced to grade GS-13 in May, 1970. The Court has concluded that in a normal course of affairs, absent any sex discrimination, she would not have achieved GS-14 in this agency by the 1972 vacancy selections, less than two years after her previous promotion. In particular, the greater practical supervisory experience of the men actually chosen was clearly a major factor in the selections. Sex discrimination played no apparent part in her failure to be selected at this precise time.
A competitive GS-14 vacancy was again announced in April, 1973, but Ms. Copeland was not certified as eligible because she was not rated as highly qualified. Eligibles were sought off the Civil Service register from outside the agency, except in one instance. By this time it is apparent that Ms. Copeland had been the victim of increasingly unfair and irregular evaluations of her work in part due to her sex, was not being assigned work commensurate with her skills, and was being intentionally denied an opportunity for further advancement.
By April, 1973, the Directorate itself was in a chaotic situation and for many reasons management had totally failed to perform. EEO complaints and countercharges had undermined morale and led many males and females, blacks and whites, to gossip, misrepresent and become defensive to a point where objectivity in promotion and assignment was totally lacking. The sexist attitude of the male supervisors was pervasive.
There is a clear indication that because of EEO pressures Irving Baggett, Ms. Copeland's superior and supervisor, would have chosen her for GS-14 at this time if she had been certified as eligible. She failed certification because of unfair and incomplete evaluations that, in substantial part, reflected the sex bias extant in the Directorate.
This course of events forces the conclusion that Ms. Copeland's failure to be promoted to GS-14 at this point was caused by sex discrimination and by certain deficiencies in her personality as it affected her ability to work smoothly with several key employees under the conditions then existing in the Directorate. The preponderance of the evidence fails to establish that only the second factor was responsible. Indeed, by April, 1973, sex discrimination was blatantly present in the area where Ms. Copeland worked, and there have been 11 promotions to GS-14 from May, 1971, when Ms. Copeland became eligible for promotion to that grade but no female so advanced. The substantial impact of sex discrimination on plaintiff's assignments, evaluations and promotion is affirmatively established.
The Secretary has been unable to establish that sex discrimination did not play a part in the failure of Ms. Copeland to advance at this time. The burden the Secretary correctly assumed under the stipulation, a burden which the law itself imposes, Day v. Mathews, 530 F.2d 1083 (D.C. Cir., 1976), is, as a practical matter, almost insurmountable in this instance. It is impossible to create a model of how the Directorate would have been structured and operated in the absence of widespread sex discrimination as previously noted.
Apart from these inherent difficulties of the problem viewed in the abstract, it should be noted that some important records have been destroyed. Plaintiff's discovery into certain critical areas was seriously hampered by failure of key personnel to disclose crucial documentation until the last minute. Some evaluations were back dated and some are clearly false. Several key officials were not called to testify to explain their conduct. The Court was unable to accept the contradictory testimony of the Secretary's chief witness, Irving Baggett, as wholly credible. Cause and effect cannot be wholly separated. The "but for" defense requires a higher degree of proof than the Secretary's able and effective counsel could marshal, viewing the weight of the evidence as a whole.
In fashioning relief the Court must exercise its wide discretion in a manner that attempts realistically to make Ms. Copeland whole for the sex discrimination she has suffered. Albemarle Paper Company v. Moody, 422 U.S. 405, 45 L. Ed. 2d 280, 95 S. Ct. 2362 (1975); Franks v. Bowman Transportation Co., Inc., 424 U.S. 747, 96 s. Ct. 1251, 47 L. Ed. 2d 444, 44 U.S.L.W. 4356 (1976). Accordingly, back pay at grade GS-14 retroactive to June 1, 1973, will be awarded and Ms. Copeland is to receive that rating with all normal in-grade promotions that would have occurred thereafter.
Apart from back pay, Ms. Copeland desires work that is commensurate with GS-14 and training to assist her to meet such duties responsibly. There is a limit to the remedial arm of the Court. A judge cannot completely remove the impact of past injustices nor prevent the obvious tensions that will continue to beset plaintiff on the job, given some of the quirks in her personality that have been noted. The affirmative action plan being evolved will hopefully aid. Certainly, at the very least, assignments at the GS-14 level and training for supervisory and management duties should be provided to plaintiff. Beyond this there is little that can be done to assure a fresh start with any certainty. Pioneers in major social movements, and in many ways Ms. Copeland is one, always carry scars. It will be for those in the Department above her immediate supervisors with whom she has been in conflict to fashion a solution and the Court can only direct in general terms what the law and equities of the situation require. A new start in a different environment within the Department of Labor would be entirely appropriate. The Government in its brief has acknowledged:
"As a women [sic] in the Directorate, Mrs. Copeland has suffered at least some ill effects of sex discrimination. By bringing the problem to light, she has moved the Department toward a potential remedy for the situation, and for this she is to be commended."
The Court expresses the hope that the Secretary will make Ms. Copeland's further progress a matter of his personal concern.
Further proceedings are required to establish and effect an affirmative action plan, to resolve the remaining claims of other class members by reference to a master, if necessary, and thereafter to award counsel fees. Counsel shall attend a status conference at 2:00 p.m. on April 9, 1976, to set the future schedule. At that time counsel for plaintiff Copeland shall submit an order and judgment covering the determinations made in this Memorandum.