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April 18, 1980

Freda C. Clark, Plaintiff
Clifford L. Alexander, Jr., Defendant.

The opinion of the court was delivered by: ROBINSON, JR.


Plaintiff, Freda C. Clark, a retired Army employee, alleges in this Title VII action that she was deprived of equal opportunity for training, development, lateral reassignment and promotion under the Department of Army Career Program for Civil Personnel Administration (Career Program) because of gender; that she was denied equal employment opportunity on the basis of sex and subject to reprisal action because of her assigned duties in the Office of Employment Policy and Grievance Review (OEPGR), Office of the Secretary (OSA), and Department of the Army (DA); and that she was denied promotion to the position of Director, OEPGR, GS-201-15, in retaliation for having filed a formal complaint of employment discrimination against the Army.

 Upon consideration of the testimony at trial, the designated deposition testimony, the exhibits, Stipulations of Facts, and the files, records and proceedings herein, and in accordance with F.R.Civ.P. 52, the Court makes and enters its Findings of Fact, Conclusions of Law, and Order for Judgment as follows:


 1) Plaintiff Freda C. Clark has a Bachelor of Arts degree with majors in Psychology and English and a Master of Arts degree with a major in personnel administration and a minor in business and administration from the University of Tennessee (1940). She also has 15 college semester hours credit related to personnel management. From 1941 to 1950 Plaintiff worked in operating personnel offices in various and diversified and functional areas of personnel management. She has more than thirty years of supervisory, administrative and personnel management experience, with a record of consistently outstanding ratings in these areas. Plaintiff began her employment with the DA in 1950 as a Clerk-typist GS-3 in the OEPGR. She was promoted on October 1, 1950 to the GS-4 level, in 1951 to Correspondence Clerk, GS-5, and in 1952 to Employee Relations Assistant, GS-7, an assignment as principal assistant to Albert Kransdorf, then Chief of OEPGR. She advanced in this assignment to the GS-13 level in June 1962 as a result of non-competitive promotions based on job audits. On August 5, 1973 Plaintiff's immediate supervisor, James W. Bage, then the first Black Director of OEPGR, selected Plaintiff for promotion to the position of Employee Relations Specialist, GS-201-14, in which she served as his principal assistant and Deputy until her retirement on July 15, 1977. During her twenty-seven years of OEPGR tenure, she received seven letters of commendation, one Quality Step Increase, two Sustained Superior Performance Awards and fourteen "Outstanding" Performance Ratings. She has enjoyed an excellent reputation as an expert in Equal Employment Opportunity matters. She had primary program responsibility for all aspects of EEO within the Army prior to the establishment of the United States Army Civilian Appellate Review Agency (USACARA) in 1970. She furnished Army EEO and personnel officials throughout the world with verbal and written instructions, conducted training courses, wrote regulations, prepared a manual on conducting and preparing reports of investigation on EEO complaints, furnished newly appointed EEOO's with orientation, training, advice and assistance in performing their duties and responsibilities, and served as a liaison representative between the Army and the staffs of the White House, Civil Service Commission, Members of Congress, other Federal Agencies, unions and minority and women's organizations and groups. Her broad and in depth knowledge of civilian personnel administration and management is indicated by her educational achievements, her early years of diversified experience in operating personnel offices, her performance ratings, awards and citations, career appraisals and her job description for the position of Deputy Director of OEPGR. On June 20, 1976, she received the Army Meritorious Civilian Services Award.

 2) The Career Program instituted by the Army in 1959 was its merit placement and promotion program for professional employees in the 200 series. This program was developed for the stated purpose of giving covered employees an opportunity to develop and progress in accordance with the program, consistent with employees' needs and Army requirements. It provided for planned career development of employees by grooming them to meet requirements for promotion. It is administered by the Office of Civilian Personnel (OCP) and the Director of Personnel serves as functional Chief of the program. Primary responsibility rests in the Chief of the Training and Career Management Division, OCP, which has primary responsibility for the administration of all Army career programs. An Executive Secretary serves as head of the staff support for the Career Program. DA regulations on Career Management indicate that these regulations have been accepted by the Civil Service Commission as meeting the requirements of Federal Personnel Manual (FPM) 335. DA requested the Civil Service Commission to approve, as an exemption to Merit and Internal Placement, all positions covered by Army Civilian Career Programs. The Commission determined that the DA Career Management Program as set forth in CPR 950-01, essentially complied with the revised Federal Merit Promotion Policy, but required certain revision, including provision for maintenance for two years of a record of each promotion made under the plan.

 3) Plaintiff elected to participate in the Career Program and her promotions and transfers were therefore determined by the Civilian Personnel Administration Referral System. Under this system, there is an annual screening by a reviewing panel of each career program participant to determine her qualifications for various types of jobs within her specialty in the DA. In making this determination, the panel considers each careerist's personal data file as compiled by the local CPO and forwarded to the panel. This data includes a computer printout (DA Form 2302-5) which is a "Career Employee Record" summarizing experience, education, training and self development, special skills, awards and availability. For each job at various grade levels, the panel determines whether a careerist is qualified for a promotion or a lateral transfer. In lieu of lateral transfer or promotion, the panel can defer consideration at the request of an individual or to permit one to gain additional experience in a new position, or to satisfy the Whitten Amendment requirement of one year in grade before promotion. A careerist may at anytime review the personal data pertaining to her that is being used by the panel. A careerist has the responsibility for furnishing information to her CPO to maintain the accuracy and timeliness of the data in the file.

 4) When DA Headquarters receives a request for a job action to fill a vacant position, it matches the request with the referral list provided by the yearly screening panel to determine those individuals previously designated by the panel as best qualified for the specific job. Further screening is performed to ascertain geographic availability for the specific vacancy. This process involves no judgmental decisions.

 5) From 1966 to 1972, Plaintiff reasonably expected developmental and promotional assignments under the Career Program. Despite Civil Service and DA regulations under which employees are entitled to receive published information concerning the availability of immediate promotion and career developmental opportunities, the DA practice was not to announce vacancies for promotions to be filled under the Career Program. Thus, during this period Plaintiff, like everyone else, was never officially informed when position vacancies occurred. Nor did DA comply with Civil Service Commission regulations which required that a record of promotion action be maintained and retained for two years, in order to permit reconstruction of promotion actions and evaluation of the fairness of the promotions made. Furthermore, DA failed to comply with regulations requiring the screening panels to record and maintain evaluation methods for obtaining final ratings of candidates or the criteria used in judging the categories in which individuals were placed, including the "best qualified". During this period Plaintiff received no referrals and thus was never given a career developmental or promotional assignment.

 6) After 1972, Plaintiff vigorously pursued possible lateral or promotional transfers. Although she had a meritorious career record, referrals to which she was entitled never materialized. Moreover, the clear regulatory violations have persisted to the present date. Finally, a significant degree of tension existed between members of the screening panels (who were often the subjects of EEO complaints) and OEPGR staff members, including Plaintiff, who reviewed EEO complaints lodged against the Army and wrote findings of discrimination. Until 1974, when Hazel Roland, a white female, became a member, all of the screening panels had been composed of white males.

 7) Supporting the evidence reflecting generalized, systemic discrimination, Plaintiff presented evidence concerning discrete instances, which is summarized as follows:

 a. In late 1963 Eugene Berlin, an employee from OCP was selected for a position of Personnel Management Specialist, GS-230-14 with assigned duties as Deputy Director of OEPGR. Berlin had no substantive experience in the work accomplished in OEPGR. When Plaintiff contacted officials in the OSA Civilian Personnel Office for an explanation regarding her lack of consideration for the assignment and the exclusion of her name from the referral list, she was advised that they had no record of her registration under the Career Program.

 b. In early 1969, Plaintiff learned that there was a vacant position of Employee Relations Specialist, GS-230-13 in the San Francisco Field Office of OCP. Plaintiff personally requested Mr. Robert R. Bruce, then Chief of Career Management, to afford her an opportunity for lateral reassignment to the position. Her name was not included on the referral list. Clarence H. Snow, Jr. was selected for the position.

 c. On September 15, 1969, Plaintiff completed and submitted to Career Management Officials a form which stated that she was available for assignment world-wide with the exception of Vietnam. By letter dated December 1, 1969, Mr. Charles Mullaly, the Director of Civilian Personnel, advised Plaintiff that the screening panel had determined that she had demonstrated potential for advancement under the Career Program and that she would be considered for all career opportunities consistent with her qualifications, career goals, and stated mobility. Within the next six months officials responsible for Career Management had created USACARA, established eight GS-14 USACARA positions, filled seven of them, and had not included Plaintiff's name on the referral list for selection consideration for any one of the assignments. The primary mission of USACARA was to investigate EEO complaints. Each of the GS-14 positions was filled by a male. Kenneth Young was the only selectee who had EEO experience.

 d. In 1970 Plaintiff applied under a vacancy announcement for a position of EEO Investigator, GS-13, in Heidelberg, Germany. Russell Jacobs was selected for the position.

 e. In 1971 Plaintiff was informed by Homer Russell, who worked under her supervision, that Career Management officials had issued a referral list for a position of a Management Employee Relations Specialist, GS-230-13 in OSA, that he was on the referral list for promotion consideration, and that the list did not include her name as a candidate for lateral assignment. Plaintiff telephoned the OSA Civilian Personnel Office and was told that her name was not on the referral list. She then inquired as to why her name was not on the referral list and was informed by Mr. Chapman that her name had not been referred due to lack of supervisory recommendation. He contended that her supervisors had recommended her for promotion but had not recommended her for lateral or developmental assignment. When Plaintiff inquired of her supervisors they advised her that they had done nothing to interfere with her receiving a lateral assignment.

 f. In late 1970 Plaintiff applied for a position of EEOO, GS-14, in the Office, Chief of Staff (OCS), under a Merit Placement and Promotion Vacancy Announcement. Applicants and Career Program registrants were considered for selection. Plaintiff was told by Mr. Berlin that her name was on the referral list. Dr. Bruce Fleming was selected. Plaintiff asked Ms. Daisey Patterson, an EEO official who processed the selection in OCS why she was not interviewed for the job. Ms. Patterson advised Plaintiff that her name was not on the referral list. Ms. JoAnna Bryan, then an official in the OCS Personnel Office told Plaintiff her name had been deleted from the referral list because of weakness in her education and experience.

 g. Mr. John W. Marsh was selected for promotion to the position of Chief of EEO Office (Personnel Management Specialist, GS-201-14), OCP effective April 1972. Plaintiff learned of Mr. Marsh's promotion to this position while her EEO complaint was in the counseling process. Plaintiff noted that Mr. Marsh had no experience in EEOO. She requested that the investigation of her complaint include a comparative evaluation of her ...

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