The opinion of the court was delivered by: OBERDORFER
The present matter arises out of a Title VII employment discrimination class action suit filed in 1979 on behalf of black and female employees and employment applicants against the United States Maritime Administration (MarAd). In a Memorandum and Order filed June 7, 1982, this Court found that MarAd had unlawfully discriminated on the basis of race. Most of the claims have since been resolved. The only remaining issue is one of appropriate relief for two plaintiffs -- Thelma McDowell and Sharon Howard. Briefs have been filed and argument was held on July 30, 1986. This matter is now ripe for decision.
Thelma McDowell was improperly denied a GS-7 position by MarAd in 1977. The parties have agreed upon the appropriate amount of backpay, and Ms. McDowell has been promoted to a GS-9 position. Ms. McDowell has obtained all the relief she seeks except with regard to promotion potential. The job she was improperly denied had promotion potential to GS-11. The position that she has now, however, does not have GS-11 potential. She requests, therefore, to be placed in a GS-9 position with promotion potential to GS-11, or, in the alternative, to be promoted to GS-11 as of May 29, 1987. MarAd is unwilling to do this.
In its opposition, MarAd appears to mischaracterize the relief sought, objecting that "there is absolutely no reason to believe, and plaintiffs have provided the court with none, that Ms. McDowell is entitled to a GS-11 position or would be so entitled in the future." Defendants' Opposition at 3 (filed June 24, 1986). The issue, however, is not whether Ms. McDowell is entitled to a GS-11 promotion, but whether she is entitled to a GS-9 position with promotion potential to GS-11.
At the July 30 hearing, counsel for defendant conceded that the position improperly denied to Ms. McDowell did in fact have GS-11 promotion potential, while her present position does not, because there exists no similar position in a higher grade. In fashioning relief for victims of employment discrimination, the aim is "'to make the victims of unlawful discrimination whole' by restoring them, 'so far as possible . . . to a position where they would have been were it not for the unlawful discrimination.'" Ford Motor Co. v. E.E.O.C., 458 U.S. 219, 230, 73 L. Ed. 2d 721, 102 S. Ct. 3057 (1982) (quoting Albemarle Paper Co. v. Moody, 422 U.S. 405, 421, 45 L. Ed. 2d 280, 95 S. Ct. 2362 (1975)); see also Laffey v. Northwest Airlines, 238 U.S. App. D.C. 400, 740 F.2d 1071, 1088 (D.C. Cir. 1984) cert. denied, 469 U.S. 1181, 105 S. Ct. 939, 83 L. Ed. 2d 951 (1985); Day v. Mathews, 174 U.S. App. D.C. 231, 530 F.2d 1083, 1085 (D.C. Cir. 1976). If Ms. McDowell is to be made "whole," she must be placed in a GS-9 position which, like the position improperly denied her, has GS-11 promotion potential.
Sharon Howard was improperly denied a GS-7 position by MarAd in January 1976. Subsequently, in November 1978, Ms. Howard left MarAd and joined another federal agency, ACTION, in a position similar to the one that MarAd had denied her. At ACTION, Ms. Howard was promoted from GS-7 to GS-9 in 1979, to GS-11 in 1980, and to GS-12 in 1982. She contends that if she had not been discriminated against, she would have advanced on a similar schedule at MarAd, except that, because she would have started the GS-7 position in 1976 instead of 1978, each promotion would have occurred two years earlier -- thus, a promotion to GS-9 in January 1977; to GS-11 in January 1978; and to GS-12 in January 1980. Ms. Howard requests back pay from January 1976 to March 1983
in an amount equal to the difference between what she actually earned and what she would have earned under this assumed promotion schedule. Ms. Howard argues that her career experience at ACTION is the best evidence of what she would have done at MarAd absent discrimination.
Ms. Howard's reliance on her actual experience is far more persuasive than MarAd's extrapolation from preliminary evaluations. "'Unquestionably, it is now impossible for an individual discriminatee to recreate the past with exactitude,'" Day v. Mathews, supra, at 1086 (quoting Johnson v. Goodyear Tire & Rubber Co., 491 F.2d 1364, 1379 (5th Cir. 1974)), and one can never be certain what Ms. Howard's progress at MarAd would have been. But it is difficult to imagine more compelling evidence of what Ms. Howard would have done, than the evidence here of what she did. Furthermore, insofar as uncertainty exists, "it is only equitable that [the] uncertainty be resolved against the party whose action gave rise to the problem." Day v. Mathews, supra, at 1086 (footnote omitted); see also McKenzie v. Sawyer, 221 U.S. App. D.C. 288, 684 F.2d 62, 77 (D.C. Cir. 1982). Failure to give proper weight to Ms. Howard's advancement at ACTION is much more likely to disappoint her entitlement to be made "whole," than reliance on such advancement is to "catapult" her into a better position than she deserves.
MarAd's contention that back pay may not be recovered by Ms. Howard for any period after her voluntary resignation in November 1978 is supported neither by the cases cited in its brief, nor by reason. For the proposition that back pay may not be recovered after resignation, MarAd cites four cases, in the following order: Muller v. United States Steel Corp., 509 F.2d 923 (10th Cir.), cert. denied, 423 U.S. 825, 46 L. Ed. 2d 41, 96 S. Ct. 39 (1975); Clark v. Marsh, 214 U.S. App. D.C. 350, 665 F.2d 1168 (D.C. Cir. 1981); Dean v. Civiletti, 29 Fair Empl. Prac. Cas. 881 (D.N.D. 1981); Ford Motor Co. v. E.E.O.C., 458 U.S. 219, 73 L. Ed. 2d 721, 102 S. Ct. 3057 (1982).
The cases cited are inapposite. In Muller and Clark, the courts stated that the plaintiffs could not recover back pay for any period after their retirement unless they could show that they were "constructively discharged," or forced into retirement involuntarily. The cases stand only for the unremarkable proposition that one cannot recover back pay for a period during which one would not have worked anyway. Dean is in accord. There again, the court denied back pay to the plaintiff after finding that plaintiff's decision to leave her job was unrelated to the discrimination. The last case cited by MarAd is Ford Motor Co v. E.E.O.C.
In Ford Motor, the Supreme Court was confronted with a question not at issue here -- namely, "whether an employer charged with discrimination in hiring can toll the continuing accrual of backpay liability under § 706(g) of Title VII . . . simply by unconditionally offering the claimant the job previously denied . . . ." 458 U.S. at 220. The Court held in the affirmative, emphasizing that such a rule would create an incentive for employers to redress voluntarily acts of past discrimination. From the record, it does not appear that MarAd made such an offer to Ms. Howard. Absent such an offer, liability for back pay is not tolled.