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
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.
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,
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.
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.
Three days later, plaintiff's evaluation conference was held with Commissioner Nardoza and Mr. Johnston. "Frightened," plaintiff discussed his inability to comprehend why, in light of the evaluation, he had been nonetheless recommended for promotion. His superiors were understandably mystified by the persistent questioning of their affirmative decision; plaintiff had been recommended for promotion, not demotion. Spontaneously comparing his present situation with past episodic career difficulties and totally unable to regain composure, plaintiff openly sobbed for nearly two hours. The conference was not productive and had to be terminated.
On June 7, 1977, plaintiff was advised by Commissioner Nardoza that the recommendation for his promotion to GS-12 was being withdrawn due to surging concern about his instability
manifested by uncontrolled weeping at the meeting the day earlier, coupled with Commissioner Nardozo's obviously shaken trust in Rogers' loyalty since the misrepresentation at the conference some weeks earlier.
Although the matter concerning the conference might not be evaluated by all similarly or as significantly, it nevertheless is the unquestioned prerogative of the business executive to cast his office judgments in the manner appropriate to his style of office management.
Provided that these judgments are applied in the absence of discrimination, they cannot then be deemed wanting in a case founded on (sex) discrimination allegations.
At trial, and particularly unexpected (he was plaintiff's witness), O'Connor testified that although there was "the appearance of this preferential treatment, Johnston was not helping Ms. Wines preferentially." Neither was his own 1977 performance evaluation attributable to sex discrimination, "nor do I feel that the withdrawal of the recommendation for Jim (plaintiff Rogers) was because of sex."
Subsequently, on June 9, Ms. Wines was promoted to a GS-12 Correctional Treatment Specialist position (pursuant to the March recommendation) after having served eight months at NERO, having had primary experience as a pre-release analyst and some less extensive experience as a post-release analyst through months of "floater" activities. At that time she had one year's activity in her grade and was not alone in her promotion in less than one year.
The Commission had hired six case managers from the U.S. Bureau of Prisons and the District of Columbia Department of Corrections during 1976, five males and one, Ms. Wines, a female. Training at headquarters was provided to Ms. Wines and to two of the males due to the availability of funds when they were hired and the fact that they started work almost simultaneously. Male analysts James Kelly and Gary Lasley were also promoted within one year.
Although acknowledging that Ms. Wines was "quite a capable analyst, a very good analyst," who had successfully undertaken the additional responsibility to reduce to currency the mounting Privacy Act backlog and who was "also faster than O'Connor and me," the plaintiff vacillated when claiming the Wines' promotion as his foundation of sex discrimination. He testified, at some point, that the female's promotion equated to sex discrimination despite its non competitive status since, he argued, she was "not entitled to (promotion) under the earlier ground rules of one year in the Commission even though she was doing GS-12 work; it was discriminatory that she and the other analysts would all receive promotions at the same time when I had one year experience with the Commission and had learned both pre-release and post-release and she did not." Later, inconsistently, the plaintiff testified that "this action (Wines' promotion) in and of itself does not represent sex discrimination . . . . It was not sex discrimination when my promotion recommendation was withdrawn but I was not satisfied with the explanation. I did deserve to be promoted."
Although "(t)he facts necessarily will vary in Title VII cases, and the specification . . . of the prima facie proof required from (plaintiff) is not necessarily applicable in every respect to differing factual situations," McDonnell Douglas v. Green, 411 U.S. 792, 93 S. Ct. 1817, 36 L. Ed. 2d 668 (1973), it is clear that a Title VII plaintiff carries the initial burden of showing actions taken by the employer from which it can be inferred that it is more likely than not that such actions were "based on the discriminatory criterion illegal under the Act." International Brotherhood of Teamsters v. U. S., 431 U.S. 324, 358, 97 S. Ct. 1843, 1866, 52 L. Ed. 2d 396 (1977). In short, plaintiff Rogers must demonstrate a prima facie case of discrimination (sex) by a preponderance of the evidence that he did not receive his promotion due to disparate treatment afforded to a female, customarily, in comparable situation.
The nucleus of inquiry centers on whether the employer is treating "(this person) less favorably than others because of (his) race, color, religion, sex, or national origin." International Brotherhood of Teamsters, 431 U.S. at 335 n.15, 97 S. Ct. at 1854 n.15.
This causal connection may be proved by demonstrating "disparate treatment," defined by the Supreme Court:
(A) "disparate treatment" . . . is the most easily understood type of discrimination. The employer simply treats some people less favorably than others because of their race, color, religion, sex, or national origin. Proof of discriminatory motive is critical, although, it can in some situations be inferred from the mere fact of differences in treatment. (citation omitted) Undoubtedly disparate treatment was the most obvious evil Congress had in mind when it enacted Title VII. Id.