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MACHAKOS v. MEESE

November 3, 1986

RITA MACHAKOS, Plaintiff
v.
EDWIN MEESE, ATTORNEY GENERAL OF THE UNITED STATES, In his official capacity, and DEPARTMENT OF JUSTICE, Defendants



The opinion of the court was delivered by: GREEN

 This action is brought under Title VII of the Civil Rights Act of 1964, 42 U.S.C. §§ 2000e, et seq. ("Title VII"), and the Age Discrimination in Employment Act of 1974, 29 U.S.C. § 633a ("ADEA"). *fn1" Plaintiff Rita Machakos, a white female, born in February 1924, seeks relief for alleged discrimination in employment on the basis of her age, race, sex, *fn2" and retaliation for having raised these allegations. A trial to the Court was followed by extensive post-trial briefing.

 Ms. Machakos joined the Civil Rights Division ("CRD") of the United States Department of Justice (the "Department") in 1976. Specifically, Ms. Machakos alleges employment discrimination in her efforts to gain promotion to several Paralegal Specialist positions in the CRD during the period 1977 through 1984. Ms. Machakos' allegations concerning events in 1977 and early 1978 were the subject of administrative proceedings that culminated in a December 13, 1982, final decision by the Equal Employment Opportunity Commission ("EEOC"), holding that there had been no discrimination of any kind. *fn3"

 This case presents the unusual instance of reverse-discrimination. The Court, ever mindful of the peculiarity of the situation in which discrimination against the majority is alleged, has endeavored to weigh carefully the testimony and examine closely the evidence. By a preponderance of the evidence, the Court finds for plaintiff on her Title VII claim, but finds in favor of defendant on the ADEA claim.

 Discussion of the merits of plaintiff's claims requires some knowledge of the setting in which those claims arose. Before proceeding with the findings of fact, the Court will outline the nature and usual working of Department promotion policies as regards paralegal positions. The Court will further sketch a brief history of Ms. Machakos' past employment in an effort to add some perspective.

 The Department's Employment/Promotion Policies

 Promotion requests come normally in the form of an SF-52, Request for Personnel Action, generated by a manager or supervisor. The action to be taken by the Personnel Specialist upon receipt of an SF-52 will depend upon: (1) the action requested by the requesting manager or supervisor; and (2) the Department's policies, directives and procedures, as well as Office of Personnel Management ("OPM") regulations and Federal Personnel Manual ("FPM") instructions governing the proposed personnel action.

 In the case of a promotion without competition, the Personnel Specialist reviews the candidate to determine eligibility and qualification for promotion. This involves a review of certain qualification standards and a determination as to whether the proposed promotion action falls within one of the exceptions to promotion through competitive procedures.

 When it is determined that a candidate must compete for the higher level position, the Personnel Specialist will announce the vacancy by issuing a written notice. The Personnel Specialist will research the standard qualifications deemed necessary for the position and identify these in the vacancy announcement. Further, the Personnel Specialist will generally confer with the organization's supervisor/manager for purposes of developing criteria against which applicants will be evaluated once all the applications are received. The candidates are then narrowed down to a group determined to be "best qualified" by reference to the standards found in Offices, Boards and Divisions Order 1335.1 (Oct. 16, 1984). See 28 C.F.R., Subpart O, § 0.77. Ultimately, a selection is made from among the candidates identified as "best qualified" by the supervisor/manager who initiated the SF-52, Request for Personnel Action.

 The "detailing" of employees into sections of the CRD, other offices, boards, and divisions of the Department, are based on the following:

 
a) a lack or shortage of assigned positions and/or work hours in the gaining organization;
 
b) a delay in filling or inability to fill vacant positions in the gaining organization;
 
c) a projected temporary excess workload in the gaining organization;
 
d) a projected temporary lull in the losing organization;
 
e) special skills of an employee required by the gaining organization;
 
f) a combination of the above five items; and
 
g) a management determination that the detailing of an employee would be in the best interest of the government.

 It is common for employees to be aware of the development of the situations described above. These employees frequently meet with the section chief and/or unit supervisors in the gaining organization to negotiate their being detailed to the gaining section, division, or agency. In addition, section chiefs negotiate with each other in seeking to obtain or release employees on details.

 "Career ladder" positions in the CRD are positions with inherent potential for promotion. When a position is filled at an entry grade level which is one or more grades lower than the highest grade established for the position, a career promotion may occur. Entry into career ladder positions can occur through demotion to a lower grade, lateral reassignment at the same grade, promotion to a higher grade, or by way of appointment from a civil service register. Entry into a career ladder or progression within a career ladder is not contingent on having served in specified lower level positions, but rather is dependent on the entrant's demonstrating the requisite qualifications specified in OPM Handbook X-118. Defendants' Exhibit 2.

 As to length of time required for promotion, reference is made to the OPM Handbook X-118 qualifications standards for Paralegal Specialist, GS-950 series, and Equal Employment Opportunity ("EEO") Specialist, GS-160 series (positions which plaintiff sought). Both sets of standards establish the number of years/months of general and specialized experience required for eligibility at particular grade levels. These standards also provide for substitution of formal education for experience (or combinations of both) for qualifications eligibility purposes. Generally speaking, the standards require at least one year of experience at the preceding grade level, or equivalent, before one is considered qualified for advancement.

 OPM regulations found in 5 C.F.R. § 300.602 establish "time-in-grade" requirements for advancement to higher level positions in the competitive service. Skills for advancement need not be acquired on the job. Depending upon the skills required for a given position or a particular type of work, skills may be acquired on the job, in other federal jobs, by way of specialized training, or by way of private sector employment.

 Plaintiff's Employment History

 Rita Machakos entered the Federal Service in 1943 as a GS-2 (temporary) Legal Stenographer with the Office of Price Administration. She served thereafter as a permanent employee of the Department of the Navy with successive duties as an inventory clerk, secretary, and personnel specialist in grade GS-3.

 Ms. Machakos then worked for the Department of the Air Force and rose to a GS-6 administrative position (with secretarial duties) by 1960. Ms. Machakos left the Air Force and worked for a few months as an office manager for the Mitre Corporation. From 1961-1969, she served on the staff of Congressman John Anderson. She worked as an aide and case worker on constituent complaints, principally those involving veterans benefits and social security.

 In 1969, Ms. Machakos left her position with Congressman Anderson to serve as an office manager for Congressman Horton of New York. She left that office in 1971 to work for the director of a Senate Select Committee on Equal Education Opportunity.

 When that committee was disbanded in 1973, Ms. Machakos went on to work as an aide for Congresswoman Bella Abzug until 1975. She served with the Congresswoman as office manager and also supervised several paralegal interns. Subsequently, plaintiff worked in the private sector as a legal secretary.

 FINDINGS OF FACT

 A. The Chronology

 Ms. Machakos was 52 years old when she began her employment with the Department of Justice in November 1976. Plaintiff was hired initially under a temporary appointment by the Department of Health, Education and Welfare and detailed to the Task Force on Sex Discrimination ("Task Force"). At the time the Department did not have any personnel "slots" for the Task Force.

 The CRD's Executive Officer at the time, Harry Fair (white), told the Director of the Task Force, Francine Temko (white), that plaintiff would be hired as a GS-7, but when funding became available plaintiff would be promoted easily. Ms. Temko passed these assurances on to Ms. Machakos, who then accepted the temporary appointment at the GS-7, step 10 level.

 After funding became available for the Task Force, Ms. Machakos was reinstated to a career ladder position of Secretary (Stenography), GS-0318-07, step 10, effective June 19, 1977. In July 1977, Ms. Stewart Oneglia (white) became the Task Force Director, succeeding Ms. Temko who had left the Task Force in March 1977.

 On August 1, 1977, the Department issued vacancy announcements for the positions of Paralegal Specialist, GS-950-7/9 and GS-950-11, with the Task Force. By this time Ms. Machakos had made her interest in a paralegal position well known, and Ms. Oneglia had Ms. Machakos detailed to a paralegal position in July 1977.

 Ms. Machakos intended apparently to apply for both Paralegal Specialist positions. She submitted a timely Personal Qualifications Statement ("SF-171"), but there was some confusion over which position Ms. Machakos was applying for (GS-7/9 or GS-11). Further confusion in considering plaintiff for these positions was occasioned when she had to revise her SF-171 to reflect more accurately her employment history.

 As a result Ms. Machakos failed to make the referral list for the GS-11 position. In fact, the Department made no selection from the referral list as one GS-11 Paralegal Specialist, Brenda Sheppard (black), was reassigned to the Task Force earlier. This was a noncompetitive lateral transfer since Ms. Sheppard was already a GS-11. It must also be noted that the seven best qualified candidates for the GS-11 position all had experience, education, performance appraisals, or awards that caused them to be ranked higher than plaintiff. See Joint Exhibit 1, at 113, 250-310.

 As to the GS-7/9 position, plaintiff was not ranked high enough to be among the best qualified candidates referred to the selecting official. See Joint Exhibit 1, at 113, 120-130. The delay occasioned by plaintiff's need to revise her SF-171 and the confusion as to which position Ms. ...


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