plaintiff(s)." Texas Department of Community Affairs v. Burdine, supra, -- - U.S. at -- , 101 S. Ct. at 1091. Because defendants have failed to produce evidence that would allow the Court to conclude that they did not unlawfully discriminate, the Court, applying the burden-of-production rule articulated by the Supreme Court in Burdine, finds that defendants have not rebutted plaintiffs' prima facie case of discrimination.
The Court having concluded that plaintiffs have established a prima facie case and that defendants have been unable to rebut their proof, might leave the matter to rest there, with judgment on the class action aspects of this suit being entered for plaintiffs on that basis alone. However, the Court has considered evidence other than the statistics in support of and in opposition to the class action claim, and it finds that such evidence substantially strengthens the conclusion that plaintiffs are entitled to a finding in their favor.
There was testimony from a number of present and former employees of NARDAC concerning various discriminatory practices, long after 1972, including a denial of supervisory opportunities to women, assignment of women to lower level positions, and the preselection
of men for supervisory positions.
The Court was especially impressed by the testimony of several former employees of the agency who were very credible witnesses and who related both specific instances and general impressions of discrimination against women at NARDAC. Some of these individuals left NARDAC for other federal employment and thereafter advanced to higher grades far more rapidly than had been possible at NARDAC.
Defendants' witnesses denied the existence of discrimination in the areas under their control. However, several of them testified that preselection and failure to post vacancy announcements had been practices within the agency, and another conceded that the technical shortcomings which impeded the advancement of one of the plaintiffs herein had been overlooked in the case of at least one male. Overall, defendants' witnesses, whatever their subjective beliefs, and indeed their individual good faith, fell far short of rebutting plaintiffs' proof of entrenched sex discrimination.
The evidence compels the conclusion that during the years in question NARDAC was an agency perhaps not atypical in Navy terms during that period where men were expected to be in positions of leadership and where women were relegated to tasks involving less authority, less discretion, less opportunity, and less pay.
For the reasons stated, the Court concludes that plaintiffs have proved discrimination against the class, that defendants have been unable to refute that proof, and that the class of plaintiffs are entitled to judgment in their favor.
In addition to the class action, suit was brought on behalf of five individual plaintiffs.
Some of these individuals have proved discrimination or retaliatory action;
others have not.
A. Yvonne Trout complains primarily
that (1) she was transferred on a detail in 1970 from one part of NARDAC where she claims to have performed well to another with which she was unfamiliar and for which she was less well suited; and (2) in 1975,
after she had been detailed as an acting program manager to the Automated Data Processing Program Reporting System (ADPPRS) program, reprisals were taken against her on account of her EEO complaints and her advocacy of the rights of women employees.
Ms. Trout objected to the 1970 transfer on the ground that it constituted an unfair labor practice and violated her rights as a federal employee. Nevertheless, it is clear that the agency's action was legitimate. A need arose in the agency for computer systems analysts and programmers in a higher priority project, and Ms. Trout as well as a male computer analyst were detailed to that project. The individual who made the selection, and who was a credible witness, testified that she was chosen only because of she appeared well suited for this assignment. Following her objections, and after a four-day hearing,
all the complaints were rejected. Almost two years later, Ms. Trout for the first time injected the issue of sex discrimination.
However, in addition to being late, the claim, for the reasons detailed above, wholly lacks substantive merit.
Ms. Trout's 1975 program was cancelled essentially because she was a poor manager and because the program, largely for that reason, did not meet with success. Because of her abrasiveness, a number of her most expert subordinates left, and she generally found it difficult to work with their replacements, whether men or women. The program Ms. Trout headed at the time was an important one for NARDAC and that agency had no interest in seeing it fail, through cancellation or otherwise. Ultimately it turned out, however, that in view of the lack of success the program had achieved under her leadership, there was no realistic choice other than to cancel it.
The Court finds that none of the actions surrounding the 1975 program cancellation were motivated either by discrimination or by retaliation.
There is no question but that this particular plaintiff has had problems at NARDAC, but these problems were essentially due to her personality rather than her sex. Throughout her tenure at the agency, Ms. Trout complained, almost incessantly, often about extremely petty bureaucratic matters.
While no doubt this plaintiff is highly intelligent, she was not as successful at NARDAC as she expected to be largely because she has consistently been unwilling to accommodate herself to the legitimate needs and concerns of her supervisors, co-workers, and subordinates,
whether male or female.
Notwithstanding its conclusion regarding the class, the Court finds that Ms. Trout has failed to prove her individual claims with respect to either of the actions she has brought, and these claims will be dismissed.
B. Marie Bach,
security specialist in charge of automatic data processing (ADP), was removed from her position in 1976, and a younger white male was placed in charge of the program. The reason given for this change was that her successor, because of his computer background, was better able to carry out the ADP security functions. The Court finds this to have been a mere pretext for discrimination on account of sex.
While there are legitimate differences of opinion on the technical issue of whether ADP security specialists should more appropriately have a background in security or one in data processing, the evidence here shows that these technical issues were not the predominant reasons for the personnel actions regarding this plaintiff. Ms. Bach was described by most witnesses as a highly respected security manager.
It is also clear that computer analysts work frequently, if not usually, under the supervision of security specialists, and that the latter ordinarily have overall responsibility for ADP security systems. That, indeed, was the situation at NARDAC until Ms. Bach's removal in 1976.
Rear Admiral Nance, who at the time of that removal was in charge of Navy equal employment opportunity matters, ordered that all of her duties be returned to her.
NARDAC complied temporarily and with obvious reluctance, but ultimately it carried out its original plans, to the detriment of this plaintiff.
For the reasons stated, the Court finds that plaintiff Bach has sustained her burden of proof with regard to her claim under Title VII, that defendants have failed to rebut that proof, and that she is entitled to a judgment in her favor.
C. Charlene Hardy
complained about failure to receive training to which she claims to have been entitled, and the receipt of a Letter of Caution and Requirement and a Letter of Reprimand in 1974. The Court finds that there is no merit to her complaints.
Ms. Hardy was not permitted to attend a seminar in advanced computer technology because the course was too complex given her experience and abilities and because of several other shortcomings from which she suffered, in particular her habitual tardiness. Insofar as the two disciplinary letters were concerned, they were fully justified by her performance. Ms. Hardy arrived late on so many occasions that she had amply exhausted her leave.
She was counseled a number of times,
and when ultimately her leave record failed to improve, she was given a letter of reprimand. The patience NARDAC exhibited with respect to this particular employee was the antithesis of discrimination.
The Court finds that defendants did not violate Title VII in their treatment of Ms. Hardy either with respect to the matters referred to above or in any other respect,
and her complaint will accordingly be dismissed.
D. Clara Perlingiero's
complaint originated with a reorganization in 1971 of an important ADPPRS project in which she had been an assistant project leader performing satisfactory work. As a result of the reorganization, more people were assigned to this project, it was renamed Code 70, and three white males were appointed to supervise it. One of the new supervisors, Charles Bremer, was placed in charge, and he soon received a promotion to GS-15. Another new supervisor, Robert W. MacPhail, a retired military officer who had little background in computers and none in ADPPRS, was rapidly promoted to a GS-14 position that had not been advertised competitively. Ms. Perlingiero alleges that MacPhail was preselected for that position, and her allegation in that regard is supported to an extent by the acknowledgment of a defense witness that preselection did occur, apparently fairly routinely, during that period. At the same time, Ms. Perlingiero remained at her GS-12 level and was given only low-level programmer's duties and responsibilities.
Immediately after she filed a complaint of discrimination in 1972, Ms. Perlingiero's evaluation dropped from the top one-third to the very bottom of the GS-12 group at the agency. At about the same time, she was transferred to the communications systems department; she was given no supervisory training or assignments which would enhance her promotion potential; and she was kept in the communications systems department from 1972 until September, 1979.
In January of 1974, the Navy concluded that procedural irregularities had occurred in connection with applications Ms. Perlingiero had made in 1972 and promoted her to GS-13, her present rank.
In September, 1979, plaintiff was made a project leader. However, she remained at her GS-13 rank even though her male predecessor had been a GS-14, and she apparently was given lower level duties and responsibilities than those which had been exercised by that predecessor. In addition, a new layer of three supervisory positions was established at the GS-14 level; Ms. Perlingiero applied for all three; and all of them were again given to white males who were junior to her.
In May, 1980,
Ms. Perlingiero's title was changed from project leader to "point of contact." She testified that, once again, her responsibilities were being eroded in favor of male supervisors, and she also complained of an announced transfer of her communications systems group to Chelthenham, Maryland, as part of the Naval Telecommunications Command, a change she alleges is retaliatory and will further adversely impact her career.
Several of her supervisors testified to Ms. Perlingiero's shortcomings in some technical fields, claiming that the real leaders in her department were in systems programs rather than in analysis, and that she simply lacks the background to advance. However, the Court is convinced that the various actions taken against this plaintiff were based on sex discrimination and on retaliation, as distinguished from objective efficiency-related factors. Ms. Perlingiero's evaluations were favorable until she filed her EEO complaints; she was thereafter given the lowest possible rating and then transferred to a department in which she had no background. She was repeatedly passed over for promotion in favor of males, some of whom had inferior credentials or were junior to her, and at least one of whom clearly was preselected for the position. Finally, she has been deprived of assignments commensurate with her various positions, responsibilities, and assignments that would have enabled her to prove her ability and to advance to higher-level positions. For the foregoing reasons, the Court finds that this plaintiff has sustained her burden of proof with regard to her claim under Title VII and that defendants have not rebutted this proof, and judgment will accordingly be entered in her favor.
E. Joan Creighton
about her removal from her administrative position and her downgrading to a lower ranked job, and secondarily about the fact that, while she is presently acting as an interim director of training, she has not been granted that position on a permanent basis.
Ms. Creighton was hired in 1974 at a GS-11 level as an assistant to Murray Silverman, a GS-15 computer systems analyst who had been performing personnel duties for the commanding officer. In December, 1975, when Silverman's resignation became effective, Ms. Creighton took over his personnel duties. At about the same time, she was promoted to a GS-12.
The major reorganization of the Navy ADP in 1977 combined NAVCOSSACT, for which Ms. Creighton worked, with three other organizations to form NARDAC.
The direction of the personnel office of the new organization, to which Ms. Creighton aspired, was given to one Lois Henry, a female with a GS-13 who had been performing similar personnel duties for NMCSA, one of the other merged organizations, and Ms. Creighton became her subordinate.
The defendants' evidence showed that Ms. Creighton's performance as personnel director had been poor, and several witnesses testified that she ran a disorganized office.
Lois Henry, who was given the position to which Ms. Creighton aspired, was clearly better qualified by every appropriate measure, and there was nothing improper about this personnel action. The Court finds that sex discrimination or reprisals were not even remotely involved.
In 1977, Ms. Creighton was transferred to the Training Department, and she has been the acting director of that department since that time. The director position has been classified GS-13 in the GS 334 computer series. Ms. Creighton herself, who is classified in the GS 301 personnel series, cannot qualify for the computer series classification because she does not have the technical background to supervise computer specialists in their technical duties. The Court is convinced that defendants are making a good faith effort to reclassify Ms. Creighton's position so that she can qualify for a GS-13. If and when that occurs, she will presumably be promoted. In short, this particular plaintiff has failed to sustain her complaints of discrimination and retaliation with sufficient evidence, and her claim will accordingly be dismissed.
The briefs submitted by the parties thus far have not focused to any substantial extent on the relief that should be granted herein, particularly with respect to the class. Accordingly, the parties shall, within twenty days hereof, submit memoranda discussing methods for the determination of entitlement to relief on behalf both of the individual plaintiffs and of the members of the class. These proposals should include a discussion of the feasibility and desirability of making individualized determinations for all individuals potentially entitled to relief as opposed to utilization of some averaging formula.
In this connection, the parties should also address the specific procedures, formulas, and other relevant details applicable to each method.
The parties shall also address the question whether the relief issues should be resolved by the Court, by a Magistrate, or by a special master. Finally, the parties' submissions should discuss the relationship between the relief for the named plaintiffs and the relief for members of the class. Within ten days of the filing of the memoranda, reply memoranda dealing with these various issues may be submitted.