opinion had good potential as a fit replacement for Bage.
11) During the period 1962 to 1972, Plaintiff continuously applied for job-related training courses. These were denied her allegedly on grounds that she could not be spared because of the heavy workload, that she did not need the training, or that funds were not available. She specifically sought to take the Civilian Personnel Officers Course, a general course in civilian personnel management, and other courses for Civilian Personnel Officers. Training and self-development are relevant factors in evaluating and comparing the qualifications of personnel and significantly enhance opportunities for career advancement. Without these opportunities, Plaintiff was disadvantaged when these factors were compared with the experience of both Ms. Roland and Mr. Snow.
12) Subsequent to 1972, Plaintiff vigorously pursued potential lateral and promotional assignments. She was continuously spurned, in spite of her outstanding employment record.
13) Statistics with respect to the Personnel Management Career Program in DA Civilian Personnel Administration
for Grades 12 through 17 show that in 1972, women held 12% of the GS-12 jobs, 18% of the GS-13 positions, 4% of the GS-14s. From 1972, no significant change was reflected until one woman was appointed to a GS-15 position in 1975. In 1976 women constituted 31% of the GS-12s, 15% of the GS-13s, 16% of the GS-14s and 2% of the GS-14s (one woman, 43 males). In 1977, 5% of the GS-14s were female (2 of 41 positions); there was little or no change in female occupancy of the other grades. No women have held any GS-16 or 17 position.
CONCLUSIONS OF LAW
1) This Court has jurisdiction over this litigation pursuant to 42 U.S.C. § 2000e-16. Chandler v. Roudebush, 425 U.S. 840, 96 S. Ct. 1949, 48 L. Ed. 2d 416 (1976).
2) The proscription against employment discrimination on the basis of sex and against retaliation for participation in EEO programs in §§ 703, 704(a) of the 1964 Civil Rights Act was made applicable to federal employees by the 1972 amendments to the Act, 42 U.S.C. § 2000e-16. Berio v. EEOC, 18 FEP 1213 (D.D.C.1979).
3) What establishes a prima facie case varies from case to case and is not a rigid formula to be applied without variation. McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802 n. 13, 93 S. Ct. 1817, 1824, 36 L. Ed. 2d 668 (1973); Teamsters v. U. S., 431 U.S. 324, 358, 97 S. Ct. 1843, 1866, 52 L. Ed. 2d 396 (1977); Furnco Construction Co. v. Waters, 438 U.S. 567, 575-76, 98 S. Ct. 2943, 2948-2949, 57 L. Ed. 2d 957 (1978).
4) The burden of proof in a Title VII litigation always remains on the Plaintiff. After the establishment of a prima facie case, however, the burden of persuasion shifts to the employer. This burden requires the defendant to "articulate some legitimate, nondiscriminatory reason." Furnco Construction Co. v. Waters, supra, at 577, 98 S. Ct. at 2949, Board of Trustees of Keene State College v. Sweeney, 439 U.S. 24, 25, 99 S. Ct. 295, 296, 58 L. Ed. 2d 216 (1978).
5) Generally, there are two varieties of Title VII cases, those which involve "disparate treatment" of an individual and those which involve "disparate impacts" on classes of people. Teamsters v. U. S., supra, 431 U.S. at 335 n. 15, 97 S. Ct. at 1854; Griggs v. Duke Power Co., 401 U.S. 424, 430-432, 91 S. Ct. 849, 853-854, 28 L. Ed. 2d 158 (1971).
6) "Practices, procedures, or tests neutral on their face, and even neutral in terms of intent, cannot be maintained if they operate to "freeze' the status quo of prior discriminatory employment practices." Griggs v. Duke Power Co., supra at 430, 91 S. Ct. at 853; Teamsters v. U. S., supra, 434 U.S. at 349, 97 S. Ct. at 1861.
7) The instant litigation presents questions of disparate treatment and disparate impact. Disparate impact involves "employment practices that are facially neutral in their treatment of different groups but that in fact fall more harshly on one group than another and cannot be justified by business necessity." Teamsters v. U. S., supra, at 336 n. 15, 97 S. Ct. at 1855. The evidence establishes beyond doubt that pervasive systemic defects
existed and continue to exist in the DA's Career Program. Regulations designed to afford equal opportunity in lateral and upward career mobility were and are flagrantly violated. OEPGR staff members who participated in the Career Program were and are subject to systemic discrimination because the personnel who controlled promotions were often the subject of EEO complaints and findings of discrimination by OEPGR staff. This is evidenced by the fact that only one OEPGR employee has received a promotion through the Career Program since 1972.
Moreover, the statistics and trial testimony indicate beyond doubt that the DA refused and continues to refuse to promote qualified women to high level policy making positions. The system, by providing the personnel boards with unfettered discretion, had and has a disparate impact upon classes of people protected by Title VII, viz. women and OEPGR employees. Not only did Plaintiff establish a prima facie case of discrimination, McDonnell Douglas Co. v. Green, supra, but she easily met her ultimate burden of proof. Furnco Construction Co. v. Waters, supra. The pervasive systemic defects inherent in the Career Program operated and continue to operate to discriminate against women, who have suffered from prior discriminatory employment practices, and OEPGR staff who enforce the EEOA. Although the system is facially neutral, disparate impact runs rampant in the DA Career Program. Griggs v. Duke Power Co., supra; Teamsters v. U. S., supra.
8) Disparate treatment exists when an employer treats some individuals less favorably than others because of their race, color, religion, sex, or national origin. Teamsters v. U. S., supra, 431 U.S. at 335 n. 15, 97 S. Ct. at 1854. The evidence establishes that the systemic violations outlined above directly impacted on Plaintiff. The testimony indicated that resentment of findings of OEPGR staff that discriminatory hiring and promotion practices existed influenced screening panel decisions. Even had the regulations been followed, it would have required saintly discipline on the part of panel members to dismiss their feelings of resentment. The indefensible regulatory violations enhanced the omnipotence of personnel officers, thus providing an outlet for their resentment. Plaintiff proved a prima facie case under McDonnell Douglas Co. v. Green, supra. While Defendant then met his burden of persuasion by articulating that several of the discrete instances cited by Plaintiff were not manifestations of discrimination, Board of Trustees of Keene State College v. Sweeney, supra, Plaintiff ultimately proved that she was discriminated against both because of her gender and her employment in the OEPGR.
The dearth of referrals after 1972, in conjunction with Plaintiff's outstanding employment record and the systemic deficiencies noted above, leads inexorably to the inference of discriminatory intent. See Washington v. Davis, 426 U.S. 229, 253, 96 S. Ct. 2040, 2054, 48 L. Ed. 2d 597 (1976) (Stevens, J., concurring). This evidence is further buttressed by overwhelming evidence of past discrimination, outlined infra. See United Airlines Co. v. Evans, 431 U.S. 553, 558, 97 S. Ct. 1885, 1889, 52 L. Ed. 2d 571 (1977). Finally, the discrete instances presented by Plaintiff reflect that she was persistently discriminated against by Defendant on account of gender and EEO activities. Clark presented three instances where she was denied promotions to positions for which she was qualified. In one of the instances, Plaintiff was denied the promotion due to statutory grounds that did not exist. In the other two instances, Defendant resorted to violation of his own regulations in order to deny Plaintiff a promotion. Plaintiff was qualified for all three positions, and the selectee was never more qualified than she. It is clear that Plaintiff has met her burden of proving that there was disparate treatment, and that her failure to be promoted was premised on criteria that violated Title VII of the Civil Rights Act of 1964, as amended in 1972. McDonnell Douglas Co. v. Green, supra, 411 U.S. at 805 n. 18, 93 S. Ct. at 1825.
9) Plaintiff has also proven that the systemic deficiencies noted above serve to "freeze the status quo of prior discriminatory employment practices." Griggs v. Duke Power Co., supra. Defendant has not seriously disputed that, prior to 1972, Plaintiff was denied access to job related training programs and courses to which she applied and was entitled. Nor does Defendant dispute that Plaintiff, prior to 1972, received no job referrals even though she had a laudable employment record and vigorously pursued said referrals. It is uncontestable that Plaintiff's future prospects were deleteriously effected by past discrimination. While past discrimination does not give rise to cause of action under Title VII, United Airlines Co. v. Evans, supra, 431 U.S. at 558, 97 S. Ct. at 1889, the existence of past discrimination makes systems that perpetuate that discrimination suspect. Teamsters v. U. S., supra, 431 U.S. at 349, 97 S. Ct. at 1861. Defendant cites Evans as authority that past discrimination is merely collateral evidence of present discrimination, and that any claims of present discrimination resulting from past discrimination are not actionable. Evans did not challenge the system that perpetuated past discrimination, however. Rather, she claimed that as a result of past discrimination, she was presently being discriminated against in violation of Title VII. The Court rejected the notion that, as a continuation of past discrimination, she was presently being discriminated against. Rather, it distinguished between a discriminatory result obtained from past discrimination and a "present violation." See United Airlines Co. v. Evans, supra, 431 U.S. at 558, 97 S. Ct. at 1889 (emphasis in original). In Teamsters v. U. S., supra, 431 U.S. at 349, 97 S. Ct. at 1861, the Court affirmed its ruling in Griggs v. Duke Power Co., supra, that a system serving to perpetuate past discrimination (with the possible exception of a seniority system) violated Title VII. It is abundantly clear in the instant litigation that the DA Career Program, as evinced by the regulatory violations, the resentment of OEPGR staff by personnel officers, and the dearth of referrals to qualified participants such as Plaintiff, served to perpetuate past discrimination. Thus this case falls within the purview of Teamsters v. U. S., supra, because the Career Program served to perpetuate prior discrimination against Plaintiff.
Upon consideration of Plaintiff's request for relief pursuant to Title VII of the Civil Rights Act of 1964, as amended in 1972, 42 U.S.C. § 2000e, et seq., and the Findings of Fact and Conclusions of Law related thereto, it is by the Court this 18th day of April, 1980,
ORDERED, that Defendant offer Plaintiff a promotion to a position at the GS-14 level effective November 20, 1972; and it is
FURTHER ORDERED, that Defendant offer Plaintiff a promotion to the position of Administrator, GS-201-15, or to one of like seniority, status, and pay, retroactive to September 29, 1974; and it is
FURTHER ORDERED, that if Plaintiff declines the foregoing offers of reinstatement, Defendant will, nevertheless, pay Plaintiff the difference between the pay she received and the pay she would have received had she accepted the above Ordered offers, up to and including the date said offers were made; and it is
FURTHER ORDERED, that Defendant shall correct Plaintiff's personnel records to reflect that she was a GS-14 from November 20, 1972, until September 28, 1974, and that she was a GS-15 from September 29, 1974, until the date said offers are made and shall pay into Plaintiff's retirement account the amounts necessary to bring that account into the position it would have been had she been promoted as Ordered above; and it is
FURTHER ORDERED, that Defendant shall pay to Plaintiff the amount of annuity she would have received from the date of her retirement to the date of Defendant's compliance herewith, less the amount of annuity payments she has received since retirement; and it is
FURTHER ORDERED, that Plaintiff is entitled to reasonable costs and attorney's fees.