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STEPHENSON v. SIMON

November 12, 1976

MARTHA O. STEPHENSON, Plaintiff,
v.
WILLIAM E. SIMON et al., Defendants



The opinion of the court was delivered by: RICHEY

 This case, brought pursuant to Title VII of the Civil Rights Act of 1964, as amended by the Equal Employment Opportunity Act of 1972 (EEOA), 42 U.S.C. ยงยง 2000e et seq., is before the Court on cross-motions for summary judgment. In addition, defendants have moved to dismiss the complaint insofar as it states claims against persons other than Secretary of the Treasury William Simon, and insofar as it seeks relief for alleged discriminatory acts occurring prior to the effective date of the EEOA.

 The following facts are undisputed: The plaintiff, Martha O. Stephenson, is female and is employed as a GS-11 chemist for the Bureau of Alcohol, Tobacco and Firearms [ATF] of the United States Department of the Treasury in Cincinnati, Ohio. On December 12, 1973, plaintiff filed a formal complaint of sex discrimination against her supervisor, Frank J. Feeney, who is Chief of the Laboratory Branch of the Central Region of ATF. The complaint alleged that she had been denied opportunities for promotion because she is female.

 The formal complaint was investigated and, when informal attempts to resolve the complaint proved unsuccessful, Civil Service Commission [CSC] Complaints Examiner Phillip N. Miller was appointed to conduct a hearing. The hearing was held on June 5th and 6th, 1975, and the Complaints Examiner's findings and recommendations were issued on August 20, 1975. The summary of these findings states:

 
Based on the evidence of record, it is herein found that complainant was treated differently than the male chemists in the ATF Cincinnati laboratory in that she was not afforded overtime as they were; in that she was not given safety awards as they were; in that she was never designated acting chief in the absence of Mr. Feeney as were male GS-11 chemists; in that she was not afforded equal opportunity to attend training sessions; and in that she received a less favorable evaluation from Mr. Feeney in 1973. The evidence further supports, and it is so found, that Mr. Feeney discriminated against complainant in his day to day treatment of her such as in the assignment of duties and general communication with her. In consideration of the various reasons given for Mr. Feeney's treatment of complainant, the only basis supported with substantial evidence is complainant's sex. Accordingly, it is concluded that Mr. Feeney discriminated against complainant in each of the above matters that way because of her sex. The actions of Mr. Feeney from the time of his appointment as Chief until the . . . selection of Mr. McOwen for the GS-12 chemists position would undoubtedly have prejudiced complainant's opportunity for equal consideration in promotion actions. However, the evidence does not show that she would have been selected but for prohibited discrimination. Complainant was one of four highly qualified candidates considered by Mr. Murrell before making his selection. The record indicates that she had neither the educational background nor the years of experience had by Mr. McOwen . . ..

 (Exhibit 2, at 18-19).

 The decision recommended by the Complaints Examiner was as follows:

 
It is recommended that the agency issue a final decision finding that the complainant was subjected to a continuing series of discriminatory acts because of her sex, but that the evidence does not support her contention that she would have been promoted in either 1971 or 1973 but for prohibited discrimination.

 (Exhibit 2, at 19-20).

 The Complaints Examiner then recommended the following corrective action:

 
It is hereby recommended that the agency determine the approximate number of hours overtime provided male chemists in conjuction [sic] with the cleaning of the laboratory and that the complainant be afforded the opportunity to work sufficient overtime to substantially equalize the record in this respect; that the agency develop and issue written guidelines for the granting of safety awards; and that a program be developed for complainant, involving formal training to provide her with experience comparable to that of the male chemists. Also it is recommended that complainant be given priority consideration for promotion to a GS-12 Chemists position if and when a further vacancy develops.
 
It is further recommended that the record of the instant complaint be carefully reviewed by the agency to determine if any disciplinary action is warranted; that Mr. Feeney be given special sensitivity training in EEO matters; that he be admonished to cease discriminating against complainant; and that all future evaluations by Mr. Feeney be reviewed by a higher authority to determine if they accurately reflect the level of her competence in relation to that of the other chemists.

 (Exhibit 2, at 20-21).

 In a letter dated September 23, 1975, Mr. David A. Sawyer, Director, Equal Employment Opportunity Program, Department of the Treasury, accepted in full the findings of the Complaints Examiner and adopted most, and perhaps all, of the recommendations for corrective action. *fn1" The Department of the Treasury did not, however, make any provisions for granting plaintiff back pay and ...


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