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March 20, 1980

James C. Rogers, Plaintiff
Cecil C. McCall, Defendant.

The opinion of the court was delivered by: GREEN


The plaintiff, James C. Rogers, a white male, asserts that his employer, the United States Parole Commission (Commission) discriminated against him because of his sex in violation of Title VII of the Civil Rights Act of 1964, 42 U.S.C. ยง 2000e et seq., as amended, when he was not promoted, non-competitively, to the position of Correctional Treatment Specialist GS-12 and a white female employee, Linda J. Wines, received such a promotion.

 Other supervisory practices are also alleged to be unlawful, retaliatory/reprisal actions for his filing an administrative Equal Employment Opportunity (EEO) complaint and the instant action.

 He seeks promotion to the GS-12 level, retroactive to June 19, 1977, a promotion to the GS-13 level retroactive to November 1979, past appropriate pay and other benefits he would have been entitled to had his promotions been timely granted, permanent assignment to the Washington, D.C. Office of the Commission, attorney's fees and costs.

 Plaintiff's annual performance ratings for 1976-77, 1977-78, and 1978-79 have each been overall satisfactory although the quality of the work was rated marginal.

 Effective November 1979 the plaintiff was temporarily detailed to Washington, D.C., pursuant to an agreement with the Commission and is now on reserve duty until June 1980. He has not been promoted.

 The Commission denies either discriminatory or reprisal actions, contending that plaintiff's allegations are totally unfounded and that he has not even succeeded in presenting a prima facie case of sex discrimination. The Court agrees.

 Rogers received his M.A. degree in 1972, majoring in criminology and corrections, and was hired that year as a Correctional Treatment Specialist, GS-9, by the United States Bureau of Prisons, assigned to the Federal Correctional Institution, Ashland, Kentucky. He was promoted to GS-11 on May 27, 1973. Three years later, at his request, he laterally transferred to the United States Parole Commission, Northeast Regional Office (NERO), Philadelphia, Pennsylvania, as a GS-11/3 Correctional Treatment Specialist (case analyst) effective April 19, 1976.

 James A. Fife, formerly the Chairman's Executive Assistant, had discussed the position with Rogers, advising that the Commission was a growing organization with the normal progression for a case analyst from GS-11 to the less supervised GS-12 and subsequently to an examinership at the GS-13 level which plaintiff hoped, but was not promised, would be forthcoming within three years. Plaintiff erroneously equates his failure to receive promotions as timely as he predicted to a breach of contract by the Commission. The Commission's policy then suggested that an individual be fully qualified and able to perform in both capacities as pre-release and post-release analyst before promotion to GS-12. For a time personnel incorrectly understood that a minimum one year's experience with the Commission was required for promotion. Infra, p. 10.

 Assigned as a pre-release analyst, plaintiff was initially one of two case analysts at NERO. In August 1976 the other became an examiner; shortly thereafter, David O'Connor transferred from the California Regional Office assuming post-release responsibility in which he was already experienced.

 Linda J. Wines (now Marble) was hired by the Chairman of the Commission through the headquarters personnel staff, as a Correctional Treatment Specialist, GS-11, and in October 1976 accepted a lateral transfer to Washington, D.C., as a GS-11/12 from her previous position as Correctional Officer with the Bureau of Prisons at Morgantown, West Virginia. In November of that year she was relocated to NERO where, for the first time, three case analysts would serve simultaneously and where Frank C. Johnston, Administrative Hearing Examiner, the immediate supervisor of the Correctional Treatment Specialists, administratively managed NERO on a day-to-day basis.

 It is plaintiff's contention that a pattern of disparate treatment then commenced in favor of Ms. Wines and persisted thereafter, to his detriment. He complains that she assumed his duties as a pre-release analyst shortly after her arrival in NERO and that he was further deposed when she was assigned his office space while he was placed in a training ("floater") position without his own office, secretary, or telephone. Despite his seniority he was subsequently moved several times to different office space. He further asserts that Mr. Johnston lunched regularly with Ms. Wines, addressing her by the improbable nickname "Wino," and assisted her in locating an area in which she might wish to seek an apartment. The plaintiff felt that Mr. Johnston gave less criticism to Ms. Wines' work than to his and allowed her to socialize with personnel during office hours, a practice neither followed nor approved by plaintiff. Although Rogers denies he inferred a romantic relationship between the female case analyst and supervisor, the implications of his references leave no doubt of his beliefs. This fallacious assumption tormented and directed his aspersions against Ms. Wines for virtually all criticism thereafter levelled toward him, direct, indirect, or imagined. Whatever went awry in plaintiff's life was attributed to Ms. Wines, "not one of my favorite people . . . . I felt that I was not now Mr. Johnston's favorite employee or friend; . . . I had had a very close relationship with Mr. Johnston prior to this."

 Consider the testimony, wholly persuasive, as defendant effectively rebutted all contentions concerning preferential treatment at NERO, invalidating Rogers' sweeping allegations of sex discrimination.

 Ms. Wines was hired by the Commission's then Chairman, not by or at the importuning of Mr. Johnston. The nine months' period during which plaintiff was a "floater," (necessitated to produce timely work and to prepare him for advancement by training in both pre- and post-release phases), performing backup duties for both pre- and post-release sections, and thereafter when rotation of duties occasioned reassignment of plaintiff to the post-release section, coincided with a highly disruptive expansion of the office space. That office space, not assigned on the basis of seniority, followed the assignment and work flow. As appropriate, Ms. Wines was allocated Rogers' office when assigned his pre-release function early after her arrival at NERO. Once the office renovations were completed *fn1" each of the analysts, none of whom had a personal secretary or clerk-typist, had his/her individual office coordinated to that person's function. Although Mr. Johnston lunched regularly with Ms. Wines, and others, plaintiff was not excluded from their company. He simply did not ask to join them, nor was he invited to do so. The friendly, concerned supervisor, responsible for the successful daily operation of his office, had a penchant for nicknames: not only was Ms. Wines addressed as "Wino" but the appellation "Jim Boy" was bestowed on the plaintiff; similar terms for other personnel also abounded. When plaintiff and Ms. Wines each initially arrived at NERO and made similar inquiry as to housing prospects, Mr. Johnston directed them in identical manner to the general area of an apartment complex.

 It is striking to examine the extraordinary similarity of behavior exhibited by Mr. Johnston and others at NERO to plaintiff and Ms. Wines; in other instances it was plaintiff who received preferential treatment because of his demonstrated greater needs. It is evident, beyond any doubt, that Rogers, unquestionably an earnest, conscientious, dedicated worker, nonetheless lacked confidence in his own decision-making (an essential ingredient of his position) necessitating superior guidance and more reinforcement of his analyses than that required by the other two case analysts. The plaintiff had been encouraged to approach Mr. Johnston with problems and took exceptional advantage of the offer, not infrequently conferring with his supervisor three to four times daily. This, of course, promoted in turn additional supervision by Mr. Johnston who spent far more substantial periods of time with plaintiff than with the other analysts, assisting him in isolating the issues, coping with his other problems (some personal), and providing general reassurance. The plaintiff's dependence on consultation, which so outstripped the other analysts (O'Connor and Wines), was confirmed by NERO's Regional Attorney. *fn2"

 On or about March 25, 1977, plaintiff received his annual performance rating which, like the other analysts, was "satisfactory," although enumerating for Rogers, a majority of below average rating factors. Ms. Wines and Mr. O'Connor were also dissatisfied with some of the specific comments on their respective ratings. Notwithstanding their performance appraisals Mr. Johnston recommended to Commissioner Joseph A. Nardoza, *fn3" who concurred, that each analyst be promoted to noncompetitive GS-12 positions to give each equal opportunity to become the senior analyst, a supervisory position then under discussion. *fn4"

 Following substantial preparations for his office's participation in the May 1977 Chief United States Probation Officers' Conference, a matter recognized to be of vast importance to the Commissioner, which included individual addresses by Rogers and O'Connor, Commissioner Nardoza curtailed a portion of that conference due to his concern for a "medical emergency" he believed had befallen O'Connor. Even though Rogers acted in good faith to his fellow analyst when he deceived the Commissioner by portraying O'Connor's bout of "stage fright" as a probable recurrence of a previous illness, his poor judgment under stress resulted in an abbreviation to both NERO and the conference of the valuable informal interchange programmed to follow the formal session.

 The Commissioner's severe consternation at the incident was readily discernible even years later in the retelling at trial. He could not understand either why the plaintiff elected to deliberately deceive him by "conspiracy" with his peer to the employer's disadvantage or why Rogers did not attempt to justify his action even after O'Connor confessed the truth.

 On June 3, O'Connor had his evaluation conference and was notified he would not be promoted. *fn ...

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