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MILTON v. BROWN

April 26, 1979

Dorothy L. MILTON, and Eleanor S. Whelan, Plaintiffs,
v.
Harold BROWN, Secretary of Defense, and Lt. General W. W. Vaughan, Director, Defense Logistics Agency, Defendants



The opinion of the court was delivered by: GESELL

MEMORANDUM OPINION

Plaintiffs are two white females who were employed as Equal Opportunity Specialists (GS-13) by the Department of Defense's Defense Logistics Agency ("DLA"). Within that unit, they worked in the Contract Administrative Services division, Office of Contract Compliance, Cameron Station, Virginia. Plaintiffs unsuccessfully sought relief administratively and then sued in this Court where a trial has been held on their claims that they were each a victim of sex discrimination in having been repeatedly denied promotion to the GS-14 level at DLA despite their outstanding qualifications. Plaintiff Whelan makes the additional claim that she was illegally discriminated against based on her age. A retroactive promotion to GS-14 and back pay is sought by each plaintiff. The Court has jurisdiction under Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. §§ 2000e-5(f) and 2000e-16(c) & (d), and the Age Discrimination in Employment Act of 1967, as amended, 29 U.S.C. § 633a(c).

 Plaintiffs presented at trial a prima facie case creating an inference of sex discrimination. See Furnco Construction Corp. v. Waters, 438 U.S. 567, 572-79, 98 S. Ct. 2943, 57 L. Ed. 2d 957 (1978), and McDonnell Douglas Corp. v. Green, 411 U.S. 792, 800-05, 93 S. Ct. 1817, 36 L. Ed. 2d 668 (1973). Plaintiffs demonstrated that:

 (1) For several years now, they have each been fully qualified by length of service and outstanding performance to be promoted to GS-14;

 (2) Both are members of a recognized minority;

 (3) Each one of the six GS-14 vacancies which opened up between 1973 and 1976 for which one or both of the plaintiffs applied was filled by a man; and

 (4) Despite the fact that a substantial number of women have consistently been employed at the GS-13 level in the headquarters or field offices of DLA, no woman has ever been selected in these locations for promotion to GS-14. *fn1"

 Plaintiffs have thus shifted to defendants the burden of demonstrating that all the allegedly illegal employment decisions were based on legitimate nondiscriminatory considerations. See Furnco Construction Corp. v. Waters, supra, 438 U.S. at 579, 98 S. Ct. 2943. In view of the extremely strong Prima facie showing, defendants carry a correspondingly heavier than usual burden.

 No claim for injunctive relief, however, is advanced, The Government consequently confronts only prayers for back pay and retroactive promotion. Therefore, in defense, it relies primarily on the proposition that, regardless of whether or not the defendants could be found to have discriminated on the basis of sex, plaintiffs are not entitled to the relief they request. The Court agrees, finding that defendants have met their burden under Day v. Mathews, 174 U.S.App.D.C. 231, 530 F.2d 1083 (1976), of establishing by clear and convincing evidence that, even absent the alleged discrimination, neither plaintiff would have been selected for the jobs under review.

 Only two of the six GS-14 vacancies that were discussed at trial, Nos. 275 and 22, are at issue. Plaintiffs are time-barred as to all the earlier vacancies. Administrative proceedings were never initiated, either informally or formally, on any of plaintiffs' discrimination claims until January 8, 1976, much more than 30 days after the earlier vacancies in question were filled. 5 C.F.R. § 713.214(a)(1)(i); De Medina v. Reinhardt, 444 F. Supp. 573, 576-77 (D.D.C.1978); Stockton v. Harris, 434 F. Supp. 276 (D.D.C.1977). Moreover, no waiver of this 30-day requirement was effected by the agency within the meaning of 5 C.F.R. § 713.214(a)(4). See Notice of Receipt of Discrimination Complaint dated Aug. 20, 1976. "A discriminatory act which is not made the basis for a timely charge is the legal equivalent of a discriminatory act which occurred before the statute was passed. It may constitute relevant background evidence in a proceeding in which the status of a current practice is at issue, but separately considered, it is merely an unfortunate event in history which has no present legal consequences." United Air Lines, Inc. v. Evans, 431 U.S. 553, 558, 97 S. Ct. 1885, 1889 52 L. Ed. 2d 571 (1977).

 Since plaintiffs do not contend and present no evidence that either one of them was denied training opportunities, was delegated inferior work assignments or was subjected to working conditions that were in any respect different from those of their male counterparts, the case boils down to whether or not the proof clearly and convincingly shows that the failure to select either plaintiff for the two GS-14 vacancies at issue would have resulted even in the absence of sex discrimination.

 All of the DLA's GS-14 positions were filled in accordance with the applicable Civil Service rules and regulations. When such a vacancy arose, as it did six times at Cameron Station during the 1973-76 period, it was advertised. Applicants for the position were then rated according to their formal credentials and their proficiency in job-related functions. Subsequently the top-rated applicants were identified and then interviewed by the selecting official for ultimate selection. This official would have had nothing to do with either the initial ratings of the applicants or the selection of the top group of three to eight applicants from which he was required to make a selection.

 The ratings received by plaintiffs in the two instances under scrutiny are consequently of great significance. Notably, neither plaintiff challenged in any way at trial the neutrality or fairness of the ratings she received for any of the vacancies that opened up during the 1973-1976 period.

 Vacancy No. 275 had 17 applicants. The male ultimately selected ranked the highest, 96.3 (on a scale of 100). Plaintiff Milton was fifth on the list, in the top five and rated 90. Plaintiff Whelan, discouraged by her lack of success in having sought promotion to several prior vacancies, did not apply. Even if, under International Brotherhood of Teamsters v. United States, 431 U.S. 324, 362-71, 97 S. Ct. 1843, 52 L. Ed. 2d 396 (1977), the Court must accordingly treat her as a constructive "applicant," the fact remains that plaintiff Whelan would in all likelihood have been rated below the selectee. She had applied for the immediately preceding vacancy and applied for the following one but ...


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