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MCCORMICK v. DISTRICT OF COLUMBIA

November 30, 1982

ROBERT A. McCORMICK, Plaintiff,
v.
DISTRICT OF COLUMBIA, et al., Defendants



The opinion of the court was delivered by: GREENE

In this Title VII *fn1" case, a white male claims that he was denied a promotional opportunity, demoted, and then reassigned to a dead-end job because of discrimination on account of his race and gender. The Court conducted a bench trial, and it finds that plaintiff has met the requisite burden of proof as to his claim of race discrimination against defendant District of Columbia, his employer. *fn2" Plaintiff has succeeded in showing the pretextual nature of the reasons advanced by the District for a series of adverse personnel actions taken against him from 1976 to 1980. He has also made out a violation of the District of Columbia Human Rights Law, D.C. Code ยง 1-2501 et seq. (1981). The Court's findings of fact and conclusions of law are set forth in greater detail below.

 I

 The plaintiff, Robert A. McCormick, joined the District of Columbia government in 1968. He was 41. *fn3" McCormick was assigned to the Educational Services Unit in the Department of Human Resources as a GS-12 Executive Assistant. The following year he was promoted to Director of the unit, a GS-13 rank. McCormick remained in this capacity until 1976, having undergone a title change in 1973 to Chief of the Education Assistance Branch. His immediate superior was first Dr. William Rumsey, then Dr. Ettyce Moore. Both had grades of GS-15.

 During this time McCormick nurtured the District's Student Loan Program from infancy to maturity. He made the initial contacts with area banks, coordinated the participation of students, educational institutions, banks, and relevant federal agencies, and he supervised the application, disbursement, and collection processes, with the help of only a small staff.

 In 1976, the then Director of Human Resources, Joseph P. Yeldell, a black, decided to reorganize the Human Resources Department. In a report dated April 9, 1976, Yeldell described the reorganization in general terms. Subsequently he summoned 58 employees to a luncheon and there announced job shifts for each of them, to take effect in May. McCormick was not included in this "functional realignment," as it was labeled, but as a result of the realignment he acquired a new boss, Eloise Turner, a black. *fn4" Ms. Turner was a former elementary school teacher, who became a child development specialist in the District government, acting as Chief of the Division of Child Development (another unit within the Department of Human Resources). Subsequently she replaced Moore and assumed the new title of Chief, Office of Educational Affairs (later changed to Acting Chief). It was at this point that McCormick's employment difficulties began.

 On September 15, 1976, barely four months after her new assignment took effect, Turner wrote McCormick that as of that date he was "reassigned to Special Assistant for Student Aid." Turner also announced that she would take over McCormick's duties as Chief of the Education Assistance Branch, so that his subordinates would report directly to her, and McCormick would work alongside the individuals whom he had previously supervised. No personnel action forms or other paperwork accompanied this demotion.

 A month later, McCormick filed an informal grievance protesting Turner's actions. *fn5" On November 5, 1976, two weeks after McCormick wrote a second grievance memorandum to Turner, he received yet another notice of reassignment, this one from Bernard Phifer, Deputy Assistant Director for State Agency Affairs, also a black. Phifer's memo transferred McCormick out of the education field altogether, placing him in the District's Food Stamp Program. *fn6" McCormick received the notice on a Friday morning, and he was to report to the new assignment on the following Monday.

 The new assignment lacked a job description and required McCormick to report to Sandra Datcher, a black, whose rank was a GS-12, a grade lower than his. In January 1978, on the advice of an attorney, he formally refused to accept any more work from her. See slip op. at 5 infra. Unbeknownst to McCormick, during the 14 months since he had left Turner's employ, Turner and her superior, Jacqueline Johnson, Assistant Director for State Agency Affairs, also black, had been working in tandem to discipline him for poor performance. *fn7" One of their recommendations included a demotion of plaintiff to GS-9. *fn8" Their attempts to gain authorization from the proper personnel officials was unsuccessful, however, for lack of adequate documentation. Johnson was also a superior of Datcher. When Datcher reported McCormick's refusal to accept additional work from her, Johnson renewed her complaints about McCormick in a memorandum to Virgil McDonald, Assistant Director for Administration.

 McDonald -- one of the few principals involved in this sorry sequence of events who actually complied with federal and District personnel regulations -- rebuffed Johnson. He noted that since no description had ever been prepared for the job McCormick held, there was no standard by which to measure his performance. *fn9" McDonald also observed that McCormick's transfer into the Food Stamp Program had been irregular for another reason: since he was subordinated to someone of lower grade, the assignment was a reduction in rank that could properly have been processed only under procedures for adverse action. This, too, had not been done. McDonald recommended that Johnson "assign Mr. McCormick to an established position commensurate to his grade and then properly document his performance."

 McDonald's letter apparently ended Johnson's efforts formally to discipline McCormick, but McCormick thereafter was simply given no work assignments. It is unclear what steps, if any, Johnson took to comply with McDonald's recommendation, except that on December 29, 1979, nearly two years after the recommendation was made, McCormick was finally transferred to a new position: Security Officer in the Human Resources' Office of Inspection. McCormick testified that he did not want the job, had little background for it, and regarded it as having poor potential for advancement. Accordingly, he filed a grievance regarding the transfer. McCormick remains a GS-13 today, having been detailed to be Acting Chief of the Inspection Office's Division of Examinations in June 1980, and to Acting Chief, Food Stamp Fraud Division, in April 1981. A 1981-82 review of his work rated it excellent in five of six categories. *fn10" Meanwhile, Turner received a promotion to GS-14 in June 1982 and the "acting" was finally removed from her title.

 II

 Under Title VII, the plaintiff has the burden of establishing a prima facie case of racial or gender discrimination by a preponderance of the evidence. *fn11" The burden then shifts to the defendant "to articulate some legitimate, nondiscriminatory reason" for its actions. Texas Dep't of Community Affairs v. Burdine, 450 U.S. 248, 67 L. Ed. 2d 207, 101 S. Ct. 1089 (1981). "If the defendant carries this burden and if his evidence is credible, the plaintiff must then show by a preponderance of the evidence that these legitimate reasons offered by defendant were not relevant to his case and thus were merely pretextual." Garner v. Boorstin, 690 F.2d 1034, 1036 n.3 (D.C. Cir. 1982), (per curiam). *fn12"

 The reasons advanced by the District of Columbia to justify its treatment of McCormick were not as precisely framed as they might have been. *fn16" However, its major themes appear to be: the neutrality of the realignment, a denial that the realignment effected a promotion in Turner's case, the ...


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