the Supreme Court also observed that it was not "defining in detail the line of demarcation between permissible and impermissible affirmative action plans." Id. at 208. At the same time, it is plain that such laudable plans should not be permitted to "unnecessarily trammel the interests of . . . white employees." Id.
Here, Ms. Machakos was a victim of discrimination due chiefly to the pre-selection of black candidates and reprisals for her participating in the EEO complaint process. The Court was presented not with a single instance of Ms. Machakos' nonselection for promotion, but with a series of events occurring over a seven-year period. Whether Ms. Machakos was the target of a systematic effort to deny her any advancement, or the random victim of a vigorous affirmative action plan, the Court cannot say. It is clear, however, that Ms. Machakos has been the victim of employment discrimination on account of her race, and, accordingly, she is entitled to relief. 42 U.S.C. §§ 2000e, et seq.
Title VII Relief
A finding of a violation of Title VII entitles presumptively the victim of discrimination to back pay and retroactive promotion. Albemarle Paper Co. v. Moody, 422 U.S. 405, 422, 45 L. Ed. 2d 280, 95 S. Ct. 2362 (1975). In accordance with this presumption of entitlement to back pay and retroactive promotion, Ms. Machakos should be awarded back pay and retroactive promotion unless the defendants can prove by clear and convincing evidence that she would not have been promoted even if there had been no discrimination. Day v. Mathews, 174 U.S. App. D.C. 231, 530 F.2d 1083, 1085 (D.C. Cir. 1976).
Defendants have presented no such mitigating evidence. To the contrary, Mr. Mann informed Ms. Dulmage that Ms. Machakos' performance "has routinely been very good; that she had superior ratings; that her work had never been criticized." Tr. at 12, 17; see also Plaintiff's Exhibit 8. Mr. Mann testified that he considered Ms. Machakos to be a very good performer. Tr. at 439. In addition, Mr. Michael L. Espeut, who was Ms. Machakos' section chief from 1980 to 1983, testified that she "was a very good employee. She was a very good worker, very hard worker, very dependable, very capable . . . . a very good employee." Tr. at 276.
In 1976 when Ms. Machakos joined the CRD, she was told that though she was being hired as a GS-7, when funding became available she could be readily promoted to GS-9. Supra at 8; stipulated facts 5, 6; Tr. at 29-30. It was not until July 1981, however, that Ms. Machakos received a promotion to the GS-9 level. Tr. at 90. Presently, Ms. Machakos is a GS-9, step 6, Paralegal Specialist in the CRD. Tr. at 5.
Expert testimony indicated that in several instances, viz., Jane Robinson, Vonnie Ryan, Jane Dyer, Quilla James, Ms. Machakos' qualifications were at least equal to those of the selectees. Tr. 217-227, 232-238. Further, in 1980-83 Ms. Machakos performed the same duties as the supervisor of the Correspondence Unit, Mr. Walker. At the time, Mr. Walker was a GS-12, though he was later replaced by Diane Roberts. Tr. at 97, 443-44; see also Plaintiff's Exhibit 27 at 2.
Prior to her selection, Mr. Mann had Diana Roberts detailed to the Correspondence Unit. Tr. at 438. Soon thereafter, the Department, through Mr. Mann, posted a vacancy announcement for supervisor of the Correspondence Unit. Id. at 432. The position was listed as a GS-11/12. Mr. Mann, as the selecting official, chose Ms. Roberts for this position. Id. at 435.
In International Brotherhood of Teamsters v. United States, 431 U.S. 324, 52 L. Ed. 2d 396, 97 S. Ct. 1843, the Court emphasized that the duty of the district court in determining a remedy once a victim has been identified, is to recreate the conditions and relationships that there would have been had there been no unlawful discrimination. Id. at 372. The Court observed that "this process of recreating the post will necessarily involve a degree of approximation and imprecision." Id. This caveat is particularly appropriate in this case, where the discriminatory conduct was, perhaps, ill-defined, but no less palpable.
Given the significance of Mr. Mann's statement indicating that there was an informal policy of promoting blacks over whites, the results of Ms. Dulmage's investigation concerning the discriminatory use of details; and Ms. Machakos' experience and accomplishment in the Correspondence Unit, the Court will award plaintiff a promotion to GS-11, step 6, retroactive to the date in 1984 when Ms. Roberts was selected over Ms. Machakos. See 42 U.S.C. § 2000e-5(g); Franks v. Bowman Transportation Co., 424 U.S. 747, 763, 47 L. Ed. 2d 444, 96 S. Ct. 1251 (1976). Ms. Machakos is entitled to receive the difference between the salary that she would have received at the higher grade and her actual salary to the date of this opinion, including interest.
In addition, the Court enjoins defendants from acting against Ms. Machakos in retaliation for her pursuing this action. 42 U.S.C. § 2000e-5(g). The Court will award Ms. Machakos the costs of this action and her attorney fees incurred in pursuing her two successful claims. 42 U.S.C. § 2000e-5(k). The Court, however, will stay any such award of fees and costs pending the completion or waiver of any appeal. An order is attached.
JUNE L. GREEN, U.S DISTRICT JUDGE
This case was tried to the Court. For the reasons set forth in the accompanying opinion, it is by the Court this 3rd day of November 1986,
ORDERED that judgment is entered for plaintiff on her two Title VII claims; it is further
ORDERED that judgment is entered for defendants on the ADEA claim; it is further
ORDERED that judgment is entered for defendants on the Privacy Act claim; it is further
ORDERED that plaintiff's request for a nonsuit as to her Equal Pay Act claim is granted; it is further
ORDERED that plaintiff be promoted to GS-11, step 6, retroactive to the date in 1984 on which Ms. Diane Roberts was promoted to supervisor of the Correspondence Unit. 42 U.S.C. § 2000e-5(g); it is further
ORDERED that defendants pay backpay to plaintiff equal to the difference between the salary at the higher grade and her actual salary as of the date of this opinion and order, including interest. 42 U.S.C. § 2000e-5(g); it is further
ORDERED that defendants are enjoined from retaliating against plaintiff for pursuing her Title VII claims. 42 U.S.C. § 2000e-5(g); it is further
ORDERED that plaintiff be awarded her costs and attorney fees incurred in pursuing her two successful claims pending completion or waiver of any appeal. 42 U.S.C. § 2000e-5(k); and it is further
ORDERED that this case is dismissed.