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JUDGE v. MARSH

December 11, 1986

ROSABELLE V. JUDGE, Plaintiff
v.
JOHN O. MARSH, Defendant



The opinion of the court was delivered by: HOGAN

 This action came before the Court for trial. At the conclusion of trial the Court requested the parties to submit proposed findings of fact and conclusions of law. The Court took the matter under advisement and herein issues its findings of fact and conclusions of law. Plaintiff, a black female, claims that she has been subjected to unlawful discrimination and retaliation in violation of 42 U.S.C. ยง 2000e-16 by defendant's failure to select her for promotions and to assign her higher performance and merit ratings. Upon consideration of all the evidence, the Court finds that plaintiff has failed to meet her burden with respect to these claims.

 FINDINGS OF FACT

 Plaintiff Rosabelle Judge began working for the federal government in 1947. From 1968 through August, 1979, she was a program analyst, GS-13, in the finance job series at an Army installation in Worms, Federal Republic of Germany. During this time, she held collateral duty assignments in Equal Employment Opportunity ("EEO") and Federal Women's Program ("FWP"). *fn1" She served as operating EEO Officer for HQ TASCOM in Worms for four years and as FWP Coordinator for HQ TASCOM for two years, both on a collateral duty basis. In August, 1974, Ms. Judge transferred to the EEO job series and took a position as EEO Specialist, GS-13, at Headquarters USAREUR, in Heidelberg, Federal Republic of Germany. Plaintiff still works in that capacity as Deputy EEO Officer of USAREUR.

 The present action is based on four administrative claims, which will be treated separately for the sake of clarity. The first complaint, filed in 1978, involves the Department of Army 1977 Career Rating Panel's decision not to rate plaintiff as "Highly Qualified." On July 23, 1981, Ms. Judge filed two additional administrative complaints, the first of which alleges that discrimination and reprisal underlie plaintiff's non-selection for the position of EEO Officer at HQ USAREUR in 1981. The second claims that her non-selection for the FWP Manager's position in April 1981 was in reprisal for her earlier EEO complaint. Plaintiff's final administrative complaint, filed in 1983, contends that the rating she received in her Merit Pay Performance Appraisal for 1981-1982 was retaliatory.

 A. The 1978 Complaint - SKAP Rating

 In order to be promoted in the Federal Civil Service, one must apply and be selected for a vacancy at the next higher grade. The Army has a comprehensive Civilian Career Management Program that is an exception to the ordinary Merit Promotion Systems. Instead of applying for individual vacancies in job series covered by this program, employees enroll in the program and are referred for all vacancies for which they are rated best qualified and which match the employees' desired location and job type. The program establishes a plan for identifying employees' developmental needs, locality preferences, qualifications, skills, and abilities and for referring candidates for promotion or reassignment in various functional areas. Among these areas is Equal Employment Opportunity, added in 1976 as a separate functional field.

 Careerists enrolled in the program are required to rate annually the degree to which they meet standards established for 26 rating elements grouped into four categories: technical qualifications, general qualifications, program management, and personnel management and communications. Ratings range from "A" (top level) to "E." Ratings are also assigned by the careerist's immediate supervisor, a reviewer (normally the second-line supervisor), and an ad hoc major command (MACOM) panel. A final assessment at departmental level is made by a Department of Army Civilian Career Screening Panel ("DA" or "SKAP Panel"). The DA Panel makes an overall evaluation in which a careerist may be rated highly qualified (HQ), qualified (Q), HQ with recommended lateral reassignment to enhance development (HQ/L), or qualified with recommended reassignment (Q/L). A Q rating is assigned to those who meet the minimum Office of Personnel Management standards for promotion but who do not meet the HQ criteria. These ratings of skills, knowledge, abilities, and personal characteristics are commonly called "SKAP" ratings.

 In determining their initial and the overall rating, the DA Panel considers the ratings assigned by the careerist and the careerist's supervisor, as well as the accompanying supporting documentation known as "SKAP Packages." *fn2" Additionally, the EEO DA Panel established yearly crediting/rating plans against which each careerist's SKAP element ratings were measured, for purposes of the overall evaluation. These plans were not distributed in advance to careerists or their reviewing supervisors. The crediting plan used by the 1977 DA Panel required careerists to have a "B" in element 3 (titled "Staff Assistance") to be rated Highly Qualified for promotion to GS-14 level EEO Officer, EEO Specialist and Federal Women's Program Coordinator positions. *fn3" Although plaintiff sought promotion to the GS-14 level, and had given herself a B in element 3, her supervisor William Gibson and the DA Panel gave her Cs in this element. Mr. Gibson did not know that a C in this element would not meet the crediting plan promotion requirement, but he testified that C was nonetheless the appropriate rating for Ms. Judge at that time. Gibson stated that he had received complaints from people about their interactions with Ms. Judge, and ascribed these to plaintiff's strong personality. He described Ms. Judge as an abrasive person, whose high personal standards made her "come on hard" at times. Based on this assessment, Gibson felt a "C" was appropriate. Ms. Judge did not seek review of Gibson's rating, and challenges neither his motive in rating her nor the credibility of his statements at trial. Indeed, Mr. Gibson's testimony and demeanor made clear that he has a very high regard for Ms. Judge and her capabilities, and that he evaluated her based solely on her performance and abilities.

 Joseph Bennett, who chaired DA Panels for EEO SKAP review from 1976 to 1979, and chaired the 1977 Panel, testified at length about the procedures and review given careerists' SKAP Packages in 1977. With regard to Ms. Judge's SKAP Package, he noted that the overall C in element 3 was based largely on Gibson's rating; the Panel did not find that plaintiff had provided sufficient justification to support a higher rating. *fn4" The 1977 DA Panel generally concurred in Gibson's element ratings of plaintiff. In two elements the Panel gave her a B, though Gibson had rated her "C". In only one instance did the 1977 Panel lower a mark given by Gibson from B to C.

 The 1977 DA Panel gave plaintiff 19 Bs and nine Cs in her final SKAP element rating. Gibson, on plaintiff's behalf, requested the DA Panel to reconsider their final rating, and was told that his C rating in element 3 had kept plaintiff from a HQ rating. He told Ms. Judge that he had requested reconsideration. Plaintiff's first independent response to the DA Panel's initial rating, some three weeks after Gibson told her he had requested reconsideration, was to write to Clifford Alexander, Jr., Secretary of the Army, informing him that she intended to file a formal discrimination complaint, and requesting a personal interview. Neither plaintiff nor her supervisor submitted additional information for the DA Panel's reconsideration to justify a B in element 3, and the Panel did not change their initial rating.

 The overall Q rating Ms. Judge received kept her from being included on referral lists for GS-14 positions within the EEO program. Specifically, plaintiff contends that she was deprived of the following promotional opportunities: the 1978 selection of EEO Officer for the Corps of Engineers, and EEO Specialist, FWP Manager, filled by Raymond Turner (a black male) and Rosemary Howard (a white female), respectively; and the 1979 selections of Ben Johnson (a black male) as EEO Officer in Ft. Monroe, Virginia, and Rosemary Gnadt (a while female) as EEO Officer at the National Guard Bureau. Ms. Judge filed a formal administrative complaint of discrimination. After a hearing, the EEOC found that no discrimination occurred, and the Army's final decision concurred.

 B. The 1981 Complaint

 In February, 1981, General Frederick Kroesen, Commander In Chief-USAREUR, selected Anita Gomez Troughten as EEO Officer to fill the vacancy left when William Gibson departed. Plaintiff had been one of three candidates recommended by a review panel for the position, and she wrote to General Kroesen on February 26 expressing dissatisfaction with her non-selection. She made no mention of filing an EEO complaint, although she contacted an EEO counsellor on Friday, February 27, 1981. On March 2, 1981, the following Monday, General Kroesen completed his review and SKAP rating of plaintiff. He gave her 17 Bs and 11 Cs. On March 9, Anita Gomez Troughten declined the offer of EEO Officer. General Kroesen reconvened a review panel and ultimately selected Luther Santiful, a black male, for the position. Mr. Santiful had been the third of the candidates originally recommended. Ms. Judge amended her administrative complaint to add a claim of reprisal in her non-selection. Plaintiff challenges both the panel review process and General Kroesen's personal attitude as biased against black women. She further contends that her ultimate non-selection, in favor of Mr. Santiful, was in retaliation for her February 27, 1981 EEO complaint.

 The selection of the EEO Officer followed the usual, two-tier review. Initially a list of eight qualified candidates was referred to General Kroesen. The list was in alphabetic order, and included Ms. Judge. *fn5" Upon receipt of the list, General Kroesen formed a Review Panel of senior officers to evaluate the candidates and to recommend several for selection. The Review Panel was chaired by Major General Charles Rogers (a black male), and included three white males, Major General Ernest Peixotto, Brigadier General W.E. Alley and Frank Cipolla, and a black female, Brigadier General (then Colonel) Sherian Cadoria. General Rogers at that time was the DESPER at USAREUR, responsible for all military and civilian personnel activities, a position he held until he left the Army to pursue theological studies. He recalled in detail the selection of Gibson's replacement, as he felt the candidates were all well-qualified for the position. When she sat on the review Panel, General Cadoria was the Chief of Physical Security Division at USAREUR, the first woman to hold this position.

 Both General Cadoria and General Rogers testified about the Review Panel's rating procedures, which were established before the review began. Candidates' packages were randomly assigned to members for review and there was no indication that the Panel members discussed the candidates prior to their individual review, or that ratings were changed following discussion. Each candidate was reviewed separately by four Panel members, on the basis of a spread-sheet summary of experience, and portions of their SKAP Package.

 Plaintiff challenges the accuracy of the spread-sheet's summary of her qualifications, and contends that her experience was significantly undervalued. A comparison of the SKAP packages of Troughten, Santiful and Judge with the spread-sheet reveals minor errors in the summary of each of their qualifications. The Court did not have the SKAP packages of the other candidates before it, and could not determine whether their qualifications were accurately reflected. The inaccuracies were minor, for all three candidates, and there was no evidence that any bias or discriminatory animus produced or contributed to the inaccuracies. Indeed, General Rogers testified that the spread-sheet had been provided and prepared by the Panel recorder, not a Panel member. The Court cannot see any basis for inferring that this summary injected an element of discrimination into the process.

 The top three candidates were Anita Gomez Troughten (147 points), Luther Santiful (133 points) and Rosabelle Judge (131 points). A comparison of the candidates' overall ratings on their SKAP Qualification Assessment forms reveals that Ms. Troughten had eight As and 21 Bs, Mr. Santiful had all Bs, and Ms. Judge had 23 Bs and five Cs. *fn6" The candidates had comparable experience in EEO and/or Equal Opportunity ("EO"), which involved similar non-employment issues within the military. The summary reflected that Ms. Judge had over six years staff level experience in EEO Programs and total EEO Program time. Ms. Troughten had only a little over one year of staff ...


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