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NITTERRIGHT v. CLAYTOR

May 23, 1978

Beverly H. NITTERRIGHT, Plaintiff
v.
W. Graham CLAYTOR, Jr., Defendant



The opinion of the court was delivered by: WADDY

 On March 29, 1974, plaintiff, Beverly J. Nitterright, an Accounting Technician employed by the Department of the Navy, filed a formal administrative complaint of sex discrimination. Plaintiff alleged a failure and refusal on the part of defendant *fn1" to compensate her at a rate of pay equal to that received by male employees performing the same work.

 Having exhausted her administrative remedies, plaintiff filed this suit pursuant to Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. § 2000e, et seq. (Title VII) and the Fair Labor Standards Act, 29 U.S.C. § 201, et seq., as amended by the Equal Pay Act of 1963, 29 U.S.C. § 206.

 Plaintiff contends that defendant unlawfully failed to pay her at a rate equal to that paid to male employees performing similar work and engaged in acts of retaliation and reprisal because of her administrative sex discrimination complaint. She further contends that the remedial action recommended by the ARB does not make her whole; that defendant failed to take the remedial action that was recommended by the ARB, and that additional relief should be awarded by this Court.

 Currently pending is plaintiff's motion for summary judgment, on which memoranda have been submitted by the parties and argument heard. *fn2"

 Preliminarily, the Court notes that both parties are satisfied that all relevant factual evidence is contained in the administrative record made a part of this action and other documents on file, and that no further discovery is desired. *fn3"

 The Factual Background

 Plaintiff was hired as an Accounting Technician on July 28, 1971, in the Command Accounting Branch (CAB), Financial Services Division, Supply and Fiscal Office at the Washington, D.C. Navy Yard, at a GS-5 level. At that time, there were two male employees, Mr. Robert W. French and Mr. William V. Hurte, who were performing substantially similar duties and functions as those assigned to plaintiff. Both men were being paid at the GS-6 level. (Both had formerly been classified as GS-5's, but after competitive advertising in March of 1971 of two newly-established positions in the CAB, both had been selected for the new GS-6/7 slots.)

 In May of 1972, having completed one year in the GS-6 grade, both Mr. French and Mr. Hurte were promoted to GS-7. In October of 1972, Mr. French resigned and his position remained vacant. Approximately one year later, in October, 1973, Miss Jean Marcellous was hired as a GS-5 level Accounting Technician, but assigned to the vacant GS-6/7 slot. Plaintiff remained at the GS-5 pay grade.

 After unsuccessful personal attempts to either have her position upgraded to her level of duties, or to have the higher-level duties removed from her responsibilities, plaintiff contacted an Equal Employment Opportunity Counsellor in January, 1974. At the suggestion of the EEO Counsellor, a desk audit of the Accounting Technician positions in the CAB was performed. The audit indicated that all three employees, Mr. Hurte, Miss Marcellous, and Ms. Nitterright were performing GS-7 level work and concluded the two women were misassigned.

 On March 29, 1974, plaintiff filed her formal EEO Complaint; on April 11, 1974, her higher level duties were removed.

 About this same time, the other GS-5 position in the CAB was competitively advertised at an upgraded GS-6/7 classification, and Miss Marcellous, the incumbent, was selected to fill the position.

 Meanwhile on November 18, 1974, pursuant to the Commandant's decision, plaintiff was reassigned to the Navy Stock Funds Accounting Section, Field Accounting Branch, Financial Services Division, at a GS-5 level. On March 16, 1975, plaintiff was promoted to a GS-6 in the Navy Stock Funds Accounting Section.

 By letter dated June 12, 1975, plaintiff was advised that the Secretary had adopted the recommendations of the Complaints Examiner finding no sex discrimination, but concluding plaintiff had been subjected to harassment and reprisal by a former supervisor. The only corrective action taken pursuant to this final agency decision was to remove a "Letter of Requirement" previously issued to plaintiff from her personnel files and to enroll her supervisor in "supervisory personnel management and EEO training courses." (Plaintiff's Exhibit 11, at 2.) Plaintiff elected to appeal this decision to the ARB.

 In early 1976, while plaintiff's appeal was pending before the ARB, the CAB was reorganized. At the time of the reorganization, the existing CAB staff slots were: Acting Head, GS-510-11/12, filled by Mr. J. M. Whitacre; Supervisor, GS-525-9, held by Mr. J. Mosely; and two Accounting Technicians, GS-525-7, held by Mr. Hurte and Miss Marcellous. The reorganization eliminated the Supervisor's position, retained the position of Head, increased the number of Accounting Technicians to three, and reclassified the Accounting Technician positions as GS-525-8. The reclassified positions were competitively advertised, and plaintiff filed an application for one of them.

 On May 11, 1976, the ARB notified plaintiff of its decision reversing the Secretary, and concluding that plaintiff had been the victim of sex discrimination.

 The relevant findings and conclusions of the ARB are as follows:

 
The Board finds . . . . that the evidence of record reflects that complainant was the victim of disparate treatment in that she performed the same work as the male GS-7s for almost three years, but for GS-5 pay. The agency was aware of this situation but condoned the action by not up-grading the position or immediately removing the higher-level duties. The Board is satisfied that the agency allowed the situation to continue, despite its knowledge that complainant was performing GS-7 level duties, until after the audit of February 1974, precipitated by her contact with the counselor.
 
With regard to issue (2), whether complainant was discriminated against on a basis of sex when the agency eliminated her higher-level duties rather than promoting her to GS-7, the record shows that an audit, previously mentioned, found her to be "misasigned." [sic] . . . . the higher-level duties were only removed from the complainant.
 
In view of the almost three years that complainant was performing these duties and was not promoted, the Board finds prima facie evidence of sex discrimination . . . . the agency has not overcome its burden of showing no discrimination. The action of the agency leads the Board to a conclusion that the duties were removed as a part of a scheme to prevent complainant's promotion to a level which she had previously performed, but for which she was not paid. (Plaintiff's Exhibit 12, at 3-4.)
 
(1) That complainant's higher-level duties which she performed prior to the audit of February 1974 be restored;
 
(2) That complainant be retroactively promoted to GS-6 effective August 1, 1974, the date on which Miss Marcellous was upgraded to GS-6;
 
(3) That she be promoted to GS-7, after 1 year as a GS-6, if the positions occupied by the male incumbents remained at the GS-7 level, unless in the interim the jobs and grade levels have been changed. [Plaintiff's Exhibit 12, at 4-5.]

 Pursuant to the ARB decision, plaintiff was retroactively promoted to grade 6, effective August 4, 1974, to her Stock Fund Accounting Section position as an Accounting Technician, and received a back pay award to that same date. On August 17, 1976, she was promoted to a GS-7 position in that same branch which had been dormant, but was reactivated to comply with the ARB decision.

 Subsequent to the ARB's decision and the filing of this civil action on June 7, 1976, several additional relevant events have taken place.

 On July 2, 1976, plaintiff's application for one of the reclassified GS-7/8 Accounting Technician positions in the newly re-organized CAB was rejected although she had been found "highly qualified." The Acting Head was selected for the GS-510-11/12 position as Head, and incumbents Mr. Hurte and Miss Marcellous were selected to fill two of the three Accounting Technician positions. Plaintiff was not appointed to one of the positions because it was felt that it would be inappropriate "to interject a non-competitive placement into the merit promotion procedures." (Defendant's Exhibit 2, at 2.) Plaintiff immediately filed a Charge of Reprisal for defendant's failure to select her for the vacant GS-7/8 position in the CAB. On September 9, 1976, she was advised of the agency's adverse decision on her Charge of Reprisal.

 On June 1, 1977, defendant advertised an opening for an Accounting Technician, GS-7/8 in the CAB. Plaintiff again applied for the position, and filed an application for a preliminary injunction on June 21, 1977, in this action seeking an injunction restraining defendant from filling the position pending resolution of this litigation. Following a hearing, plaintiff's application for a preliminary injunction was denied because she had failed to show irreparable injury. Virginia Petroleum Jobbers Ass'n. v. Federal Power Commission, 104 U.S. App. D.C. 106, 259 F.2d 921 (1958); Sampson v. Murray, 415 U.S. 61, 39 L. Ed. 2d 166, 94 S. Ct. 937 (1974).

 Effective September 25, 1977, plaintiff was promoted to the Accounting Technician position in the CAB at a grade 8. *fn5"

 II. The Contentions of the Parties

 Essentially, this is a case in which plaintiff seeks relief in addition to that awarded by defendant pursuant to the ARB order to make her "whole." Defendant contends that she has received all of the relief to which she is entitled.

 Plaintiff alleges violations of Title VII and the Equal Pay Act, both of which seek to eliminate employment discrimination. The acts are to be construed in harmony and read in pari materia. Laffey v. Northwest Airlines, Inc., 185 U.S. App. D.C. 322, 567 F.2d 429 (D.C. Cir. 1976), cert. denied, 434 U.S. 1086, 98 S. Ct. 1281, 55 L. Ed. 2d 792, 46 U.S.L.W. 3527 (1978); Orr v. Frank R. MacNeill & Son, Inc., 511 F.2d 166 (5th Cir. 1975), cert. denied, 423 U.S. 865, 96 S. Ct. 125, 46 L. Ed. 2d 94. Thus, the same "facts may form the basis for redress under both Title VII and the Equal Pay Act if the requirements of each are separately satisfied and the claimant does not reap overlapping relief for the same wrong." Laffey v. Northwest Airlines, Inc., supra at 445.

 
(1) An injunction against future violations of Title VII and the Equal Pay Act and from future harassment or reprisal against her in exercising her rights under these statutes;
 
(2) Retroactive promotion to GS-6/7 together with an award of back pay, with interest, ...

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