The opinion of the court was delivered by: GREENE
Plaintiff was employed by the National Institutes of Health in July of 1960 as a GS-13 mathematician.
Her complaint alleges discrimination on account of sex in violation of Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. § 2000e-16, because of the failure of the agency to promote her to grade GS-14.
In 1964, plaintiff was recommended for promotion to a GS-14 by her supervisor, Dr. John Hearon, Chief, Office of Mathematical Research, National Institute of Arthritic and Metabolic Diseases. The promotion recommendation was not forwarded to the final decision-makers by the Director of Intramural Research at the National Institute of Mental Health and thereby in effect denied. Subsequently, Mrs. Marimont was transferred to another subunit of the National Institutes of Health, the National Institute of Neurological Disease and Stroke, where she again functioned as a mathematician. In May of 1971, the Scientific Director of that Institute appointed a special Ad hoc committee of three scientists thoroughly familiar with plaintiff's work to review plaintiff's work, with a view toward recommending her for promotion to GS-14. The Ad hoc panel, a so-called peer review committee, unanimously recommended plaintiff for promotion, and Dr. Henry Wagner, Scientific Director, presented the recommendation to the Board of Scientific Directors of NIH, a body consisting principally of the Scientific Directors of those Institutes having intramural research programs and who are in charge of such programs.
During its deliberations, the Board indicated that the promotion recommendation would not be approved, and Dr. Wagner withdrew the request. It is the denial of her promotion in 1971 that plaintiff claims to be an act of sex discrimination (although the 1964 incident was also admitted into evidence in support of the 1971 discrimination claim).
Shortly after the denial, Mrs. Marimont filed an informal EEO complaint. There followed a desk audit, the preparation of a new job description for Mrs. Marimont,
and another denial of her promotion, this time by Dr. Eldon Eagles, Acting Director of the Institute. In February 1972, plaintiff filed a formal complaint of discrimination with the Office of Equal Employment Opportunity at NIH, and in May 1973 a decision was issued by that office and approved by the Acting Director at NIH. The EEO decision stated in pertinent part that "there may have been, through omissive and subtle discrimination an affect (sic) on the promotional opportunities in this case." The decision proposed that plaintiff be promoted. Seven months later, the Director of the Equal Employment Opportunity Staff of the Department of Health, Education, and Welfare issued a decision purporting to adopt the proposed disposition but holding that Mrs. Marimont was not discriminated against because of sex when she failed to receive her promotion.
Ultimately, in October 1973, plaintiff was promoted to a grade GS-14. However, this action was brought on November 1, 1973, requesting that her promotion be made retroactive to June 23, 1971, the date when her promotion was denied by the Board of Scientific Directors, and it further requests backpay and attorney's fees. Additionally, plaintiff seeks an injunction to require defendants to adopt a plan to eliminate discrimination against women at NIH, including a requirement for goals and timetables for the promotion to higher level positions, and the promulgation of objective promotion criteria.
In a Title VII case such as this, a three-step procedure is generally required: (1) plaintiff has the burden of making a showing of a Prima facie case of discrimination on the basis of sex;
(2) if such a showing is made, the burden shifts to defendant to articulate legitimate nondiscriminatory reasons for the particular personnel action; and (3) if defendants are able to articulate legitimate nondiscriminatory reasons for the personnel action, the burden shifts back to the plaintiff to demonstrate that the reason is in actuality a pretext for discrimination. Furnco Construction Corp. v. Waters, 438 U.S. 567, 98 S. Ct. 2943, 57 L. Ed. 2d 957 (1978); McDonnell Douglas v. Green, 411 U.S. 792, 93 S. Ct. 1817, 36 L. Ed. 2d 668 (1973). In the instant case, it is not necessary to pursue the entire three-step procedure, for plaintiff has made out a Prima facie Case of discrimination which defendants have been unable to rebut.
First. In a memorandum and order dated November 28, 1977, Judge Sirica of this Court, to whom this case was at that time assigned, stated in denying cross motions for summary judgment that
A fair evaluation of these conflicting contentions and evidentiary materials to which they refer leads the Court to conclude that plaintiff has made a substantial showing of discrimination in connection with her 1971-72 application for promotion . . . the Court can state that it is defendants' burden to show "by clear and convincing evidence' that (negative evaluations concerning plaintiff's qualifications) reflect an accurate appraisal of plaintiff's qualifications and professional standing and are not merely pretextual. If defendant fails to carry this burden and in the circumstances it is indeed a weighty one the result required by ( Day v. Mathews, 174 U.S.App.D.C. 231, 530 F.2d 1083) is clear.
Thus, Judge Sirica has already found in this litigation that plaintiff has made out a Prima facie case of discrimination. While that determination is technically not the law of the case, since Judge Sirica ultimately denied both motions for summary judgment, it is nevertheless persuasive.
Second. The National Institutes of Health has found that there may have been discrimination against this plaintiff. In the decision of the NIH Deputy Equal Employment Opportunity Office of May 22, 1973, which was approved by the Acting Director of NIH, it was concluded that "the record does support the fact that improper management and personnel administration may have resulted in omissive and subtle discrimination, which even if unconscious, results in positive career damage" and further, as noted above, that through such discrimination there may have been an effect on plaintiff's promotional opportunities.
To be sure, that decision of the NIH management was not concurred in by an official in the Office of Equal Employment Opportunity of the Department of Health, Education, and Welfare. However, as noted (note 5 Supra ), there is doubt concerning the jurisdiction of that official, and in any event, it does not appear that he had any factual basis upon which to bottom a conclusion at variance with that reached at NIH.
Third. In 1964 and again in 1971, Mrs. Marimont's direct supervisors recommended her for promotion. During the 1971 proceedings, a peer review group composed of scientists thoroughly familiar with plaintiff's work was appointed, and that body likewise and unanimously recommended her promotion.
Nevertheless, on both occasions, the promotion was vetoed by higher authorities. It is unnecessary to impugn the good faith of the Board of Scientific Directors which caused the withdrawal of the 1971 promotion recommendation to conclude that plaintiff's promotion opportunities were improperly curtailed. United States v. Hazelwood School District, 534 F.2d 805, 813 (8th Cir. 1976), Reversed on other grounds, 433 U.S. 299, 97 S. Ct. 2736, 53 L. Ed. 2d 768 (1977). The members of that Board were unclear as to the proper standards and rationales to be applied to promotion actions;
they were not nearly as familiar with plaintiff's capabilities as a mathematician as the peer review committee; and they did not consider or consult the most relevant guide concerning the promotion of research scientists the Research Grade-Evaluation Guide issued by the Civil Service Commission.
Fourth. The standards by which plaintiff's promotion recommendations were judged were ill-defined and adhered to with different degrees of faithfulness and understanding by members of the Board of Scientific Directors. Some members of the Board testified that they opposed plaintiff's promotion because, although they did not question her abilities as a mathematician, they felt that her mathematical skills and performance were not sufficiently related to biomedical research. Other members of the Board were not concerned with the relationship of her work to this admittedly primary responsibility of NIH, but considered her to be only a "marginal" mathematician at the GS-14 level. Still other members of the Board felt that plaintiff's specific responsibilities and performance, whatever her innate abilities, did not justify the promotion. There was thus a considerable difference of opinion among the Scientific Directors as to the appropriate role for the Board; that is, whether it was to consider candidates for promotion based on their own achievements and potential as scientists (the "man-in-the-job" concept); whether promotions were to be based on the usefulness of their particular performance at the Institute or branch in which they were functioning; or whether promotions were to be granted depending on the value of the employees' work or potential to NIH as a body.
While it cannot be said with certainty that this confusion of understandings and rules was sex-oriented, it does take on significance in the context of a case in which plaintiff's peers and immediate supervisors consistently recommended her for promotion, and the decision-makers just as consistently rejected her.
Fifth. Dr. John Hearon, who twice recommended plaintiff for promotion (once in 1974 as her supervisor and once in 1971 as a member of the special Ad hoc committee), while firmly denying that plaintiff had been the victim of sex discrimination, conceded that her case had been "disgracefully handled." The witness was apparently referring to the process by which plaintiff was moved from one institute to another and detached for work to various units within NIH. Again, whatever the witness' subjective view of the reasons for the mishandling of ...