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SLADE v. BILLINGTON

March 18, 1988

CHARLES DOUGLAS SLADE, Plaintiff
v.
JAMES H. BILLINGTON, Defendant


George H. Revercomb, Jr., United States District Judge.


The opinion of the court was delivered by: REVERCOMB

GEORGE H. REVERCOMB, JR., UNITED STATES DISTRICT JUDGE.

 I. INTRODUCTION

 This case was tried before the Court on September 14-18 and 21-22, 1987. The Court now adopts as its own, with modifications, defendant's proposed findings of fact and conclusions of law. It is clear that the plaintiff has good professional qualifications and experience. However, the Court must conclude on this record that plaintiff has not met his burden of showing a discriminatory motive on the part of his supervisor, who favored two other persons for promotion to GS-13 positions. There is some evidence that suggests only that plaintiff's supervisor was motivated by a desire to hire friends and former colleagues from the District of Columbia Government.

 The Court also concludes that plaintiff has not sustained his burden of proof to show that a proposed adverse action, the delay in processing his EEO complaint, the admonishments to Gartmon and Johnson, and the denial of court leave were retaliatory in nature.

 II. FINDINGS of FACT

 1. Plaintiff C. Douglas Slade, a white male, is employed by defendant, Library of Congress, as a GS-12 Position Classification Specialist in the Position Classification and Organization Office ("PC & OO"), and has been so employed since October 1979 (Admissions 2.1 and 2.2, Plaintiff's Ex. 21).

 2. Plaintiff alleges discrimination against him because of his race, color and sex in connection with his non-selection for a position as a GS-13 Expert Position Classification Specialist in the Position Classification and Organization Office of the Library of Congress in March, 1984 (AMENDED COMPLAINT, Exhibit 1) and reprisal because of his filing an informal (and later formal) complaint of discrimination with the Equal Employment Opportunity Complaints Office ("EEOCO") of the Library in the form of a notice of proposed adverse action for a five (5) work days suspension on May 30, 1984, (AMENDED COMPLAINT, Second Cause of Action), reprisal in the form of charging annual leave for a portion of time spent conferring with his attorney and reprisal in the form of mishandling of his EEO complaint by the Library's EEOCO (AMENDED COMPLAINT, para. 4.16 and 4.17). In addition, plaintiff has alleged retaliation against witnesses favorable to him in this case (AMENDED COMPLAINT, para. 4.19-4.29), although no separate cause of action is alleged with respect thereto.

 3. In 1980, before the events giving rise to the present cause of action, PC & OO was manned by 13-16 specialists and clerks (Plaintiff's Ex. 70 C). The chief of the office was Alice E. Riley, a white female (Plaintiff's Ex. 145), who had the title of Position Classification & Organization Officer and was a GS-14 Supervisory Position Classification Specialist (Plaintiff's Ex. 70 C). The assistant chief of the office was Gladys D. Kimbrough, a black female (Plaintiff's Ex. 20), who as a GS-13 Supervisory Position Classification Specialist (Plaintiff's Ex. 70 C). Also at that time, there were spots for four (4) GS-12 Position Classification Specialists (Plaintiff's Ex. 70 C). The plaintiff was hired into the office in October, 1979, by Alice Riley (Plaintiff's Ex. 70 C) as a GS-12, Position Classification Specialist. In addition to the plaintiff, there was one vacant position and two other GS-12s: Ray E. Parker, a white male (Plaintiff's Ex. 20), and Ira Johnson, Jr., a black male (Plaintiff's Ex. 141). Mr. Johnson was hired into PC & OO from the District of Columbia government in June, 1980 (Plaintiff's Ex. 70 C) as a GS-12 (Tr. 233). (References to the transcript are designated "Tr." followed by page number.) While at the District of Columbia government, Mr. Johnson worked in the Classification Office of the D.C. Public Schools Personnel Department (Tr. 233). His supervisor at the Library of Congress in 1970 at the time of his hire into the Library was Alice Riley (Plaintiff's Ex. 70 C). Also in the office at that time were three (3) GS-11 Position Classification Specialists: Durward A. Mannering, who left in mid-1982 (Tr. 236-7), LaVerne Cox, a black female, and Laura A. Christian, a black female (Plaintiff's Ex. 20). Ms. Cox, had been hired in the spring of 1980 by Ms. Riley (Plaintiff's Ex. 20). Prior to coming to the Library of Congress, Ms. Cox had worked in personnel for the District of Columbia Government (Plaintiff's Ex. 20). Also in the office at this time were one GS-9 Position Classification Specialist, Debra Ann Smith, (Plaintiff's Ex. 70C), a black female, and one GS-7 Position Classification Specialist, Elizabeth D. Maloney (Plaintiff's Ex. 70 C), a white female (Plaintiff's Ex. 1421). Finally, as a Classification Assistant was Annie L. Gartmon, (Plaintiff's Ex. 70 C), a black female, and Iris Herndon Toyer, Classification Clerk (Plaintiff's Ex. 70 C), a black female (Tr. 167). Thus, prior to the events giving rise to this cause of action, the top two positions in the office were held by females (the Position Classification Officer and the Assistant Position Classification Officer), and blacks held a majority of the position classification positions (7 out of 11) *fn1"

 4. In March 1981, LaVerne Cox was promoted to a GS-12 Position Classification Specialist in PC & OO (Plaintiff's Ex 126), by Alice E. Riley (Tr. 389).

 5. During the time when Alice Riley was still Chief, PC & OO, the idea of the creation of GS-13s in PC & OO was discussed in the office (Tr. 238).

 6. When Alice Riley resigned as Chief, PC & OO in March, 1981, Gladys D. (Kimbrough) Carpenti (black, female) served as Acting Chief (Plaintiff's Ex. 136).

 Selection of Donald Ware as Chief, PC & OO

 7. The initial vacancy announcement (No. 10094) for the replacement for the Chief's job had an opening date of March 18, 1981, (Plaintiff's Ex. 100).

 8. Donald R. Ware (black male), who was then the deputy director of the Position Management and Classification Division of the District of Columbia Office of Personnel learned about the vacancy from the Federal Register that lists federal job vacancies (Tr. 412) and applied on the opening date. *fn2"

 9. Management was unable to fill the position in the time allotted, and the job was approved for reposting as Vacancy Announcement No. 10363 by Louis R. Mortimer (white male) (Plaintiff's Ex. 107 and 145).

 10. All applicants were advised of the necessity to reapply for the Position Classification and Organization Officer position and to complete in addition a Supplemental Qualifications Statement (Plaintiff's Ex. 108).

 11. Donald Ware reapplied under the reposted vacancy announcement no. 10363 (Plaintiff's Ex. 98). *fn3"

  12. After screening through a panel *fn4" Mr. Ware was recommended for selection by the Director of Personnel Louis R. Mortimer (Plaintiff's Ex. 124).

 13. Dr. Mortimer's recommendation was approved by Glen A. Zimmerman, the Associate Librarian for Management (Plaintiff's Ex. 124), and he was appointed effective February 22, 1982 (Plaintiff's Ex. 243).

 14. Both Dr. Mortimer (Tr. 365) and Mr. Zimmerman are white males.

 15. The plaintiff did not apply for the PC & O Officer position (Plaintiff's Ex. 98).

 Creation of GS-15, GS-14 and Two GS-13s Positions

 16. As a result of restructuring of the PC & OO positions (Tr. 154), on October 15, 1982, Louis R. Mortimer, white male, the Director of Personnel, regraded the Chief of PC & O's job to the GS-15 level, the Assistant Chief to the GS-14 level, and also approved the GS-13 level recommended for two GS-13 Expert Position Classification Specialists (Plaintiff's Ex. 83, pg. 2, p. 12 and 24 and Plaintiff's Ex. 145, pg. 1). These classification actions were approved by the Association Librarian for Management, Glen A. Zimmerman (white male) (Plaintiff's Ex. 82, p. 2).

 17. Over the following weekend, Mr. Zimmerman became concerned that the intervening grade between the full performance level GS-12s and the GS-14 would prevent the GS-12s from being able to compete for the GS-14 position (Tr. 627-8).

 18. Accordingly, on the next Monday, October 18, 1982, Zimmerman met with David Lombardo, the Recruitment and Placement Officer, who had reached the same conclusion as Zimmerman, and Zimmerman directed the cancellation of the GS-13s (Tr. 628). As a result, the GS-12s in PC & OO were able to compete for the Assistant Chief position (Plaintiff's Ex. 152).

 Filling of GS-14 Assistant Chief Position

 19. Thereafter, the Assistant Chief, Supervisory Position Classification Specialist's job was posted at the GS-14 level (Vacancy Announcement No. 20783, Plaintiff's Ex. 104). While the minimum qualifications required all outside applicants to have one year of specialized position classification experience at the GS-13 level, Library of Congress applicants were considered qualified if they had two years of specialized position classification experience at GS-12 level (Vacancy Announcement No. 20783, Plaintiff's Ex. 104). Forty-two (42) applicants applied, including PC & OO employees Ira Johnson, the plaintiff in this case C. Douglas Slade, as well as Jesse G. Powell (Plaintiff's Ex. 96). Both Johnson (black male) and C. Douglas Slade (white male) at that time were occupying GS-12 non-supervisory personnel classification specialist positions in PC & OO (Plaintiff's Ex. 96). Mr. Powell, at the time of his application, had been filling a GS-13 *fn5" Supervisory Position Classification Specialist position in the D.C. Government for over 2 1/2 years, and actually had been supervising or leading others in classification work for over 8 years (Plaintiff's Ex. 128, p. 2). By contrast, neither Ira Johnson nor the plaintiff, C. Douglas Slade, had ever filled a supervisory position classification position (See Slade's application for GS-13, Plaintiff's Ex. 21 and Johnson's application for GS-13, Plaintiff's Ex. 155). Selectee Jesse Powell, who was then a GS-13 position classification specialist, was chosen from a group that included only 3 applicants who were then occupying supervisory position classification specialist positions at the GS-13 or 14 level (Plaintiff's Ex. 96). *fn6"

 20. Both the plaintiff C. Douglas Slade and Ira Johnson *fn7" were interviewed for the GS-14 position by Mr. Ware (Tr. 65 and 249-50). While the plaintiff alleges that toward the end of his interview for the GS-14 position Mr. Ware said to Mr. Slade that he was obliged to hire a female for the position (Slade, p. 9), plaintiff's witness David E. Hurley (a white male), who was an applicant for the same position, and also interviewed by Mr. Ware, indicated no discriminatory statements by Donald Ware in his interview and he left the interview with a very positive impression (Tr. 154). In fact, Mr. Hurley specifically stated that he thought he would be given serious consideration for the job. Ira Johnson, who was also interviewed for this position by Mr. Ware, testified as to no such statements by Mr. Ware.

 21. Mr. Ware's recommendation of Jesse Powell for the Assistant Position Classification Officer position in February 1983, was approved by Louis R. Mortimer (white male) on 2/8/83 ("LRM 2/8/83") (Plaintiff's Ex. 119).

 22. No EEO discrimination charges were filed with regard to the selection of Jesse Powell.

 23. In June 1982, Mr. Ware also hired Barbara Blackwood as a GS-12 Position Classification Specialist (Tr. 236-37) (Plaintiff's Ex. 70 K). There were 10 applicants for this vacancy but only two applicants were filling position classification specialist positions at the time: Ms. Blackwood and one other (Plaintiff's Ex. 91). Ms. Blackwood was then employed at the District of Columbia. (Plaintiff's Ex. 91).

 Reactivation of GS-13s

 24. Soon after the selection of Mr. Powell, Mr. Ware inquired about the GS-13s being reinstated, but his request was not acted upon because a related issue had been raised in a law suit then pending in court (Tr. 729). When this was resolved at the end of July, 1983 (Tr. 729-30), Mr. Ware reestablished dialogue on the GS-13s (Tr. 730) and wrote to the Director of Personnel, requesting that the GS-13s be reactivated (Plaintiff's Ex. 85). This request was approved by Louis R. Mortimer (white male), the Director of Personnel (Plaintiff's Ex. 85), but he did not approve the actual vacancy announcement request until November 16, 1983 (Plaintiff's Ex. 120).

 25. Thereafter, staffing specialist Michael R. Brehmer, a Personnel Staffing Specialist in the Recruitment and Placement Office, (white male) drafted the vacancy announcement (Vac. Ann. No. 31024) for the two GS-13 Expert Position Classification Specialist positions (See Defendant's Ex. D). Several days later and before the announcement was actually posted, it was discovered that there was a typographical error on the announcement which the Recruitment and Placement Office considered to be "fatal," and it was cancelled (Tr. 603). This announcement was replaced with the Vacancy Announcement No. 31025 (Defendant's Ex. E), which had the same opening date -- December 28, 1983 and the same closing date -January 5, 1984 -- as the original vacancy announcement. The only difference between the old and new announcements were the correction of the typographical error, and the addition of a brief explanation stating that the original vacancy announcement was cancelled but that qualified candidates under the original vacancy need not reapply (Tr. 604).

 26. On the morning of January 5, 1984, the closing date of the vacancy announcement, Mr. Ware asked Mr. Brehmer how many applicants had applied (Tr. 604). When Brehmer told him that one applicant had applied, *fn8" Mr. Ware said he was not surprised because most of his staff either had been on vacation or was currently on vacation. Mr. Ware suggested that the vacancy announcement remain open for approximately another week to a week and a half (Tr. 605). Mr. Brehmer then extended the closing date to January 16, 1984 (Tr. 605). All 8 of the GS-12s in PC & OO applied (Plaintiff's Ex. 94). *fn9" The applications of 3 of these applicants were received on the last date for applying: January 16, 1984:

 
C. Douglas Slade (Defendant's Ex. F) Elizabeth D. Maloney (Defendant's Ex. G), and
 
Aurelia LaVerne Cox (Defendant's Ex. L).

 27. Vacancy Announcement No. 31025 included as a minimum qualification 3 years of progressively responsible specialized experience in position classification, which demonstrated the ability to provide effective leadership (Defendant's Ex. E). Mr. Ware and Mr. Powell interviewed all the applicants, asking each a set number of questions (Tr. 470-71). In addition, the work histories of all applicants were reviewed -- starting with their most recent job (Tr. 470). The work histories were compared with the selection factors (Tr. 471), and then Mr. Ware and Mr. Powell independently ranked the applicants (Tr. 472). Mr. Powell ranked the top 4 applicants as: Barbara Blackwood, Laverne Cox, the plaintiff and Ira Johnson (Tr. 471). Mr. Ware arrived at the same top four, although in different order (Tr. 471).

 28. Ware and Powell recommended Barbara Blackwood and Aurelia LaVerne Cox for selection because they had more supervisory experience than the other finalists. What stood out for Ms. Cox was that she had been an acting chief of classification at the University of the District of Columbia for 1 year or better; that she had trained lower graded position classification specialists; *fn10" and that she had also dealt well with top management (Tr. 473). Ms. Blackwood had been an acting team leader supervising 4 GS-8 and GS-11 (two at each grade) position classification specialists (Defendant's Ex. M and Tr. 473); she had also had technical experience developing standards and had performed well in dealing with top level management (Tr. 472-73).

 Plaintiff had no comparable leadership experience in assigning work to, or planning work for other position classification specialists, (Tr. 736). While serving at HEW, the plaintiff was assigned for 7 days in 1979 as an Acting Chief of a group performing a mixture of classification, staffing and employee relations work (Defendant's Ex. F, Memo dated Jan. 30, 1979, /s/ Pauline O. Nordstrom). The plaintiff had no experience providing training to lower rated staff (Tr. 737).

 The Allegations In Slade's Discrimination Complaints

 30. All 6 of the non-selected GS-12s filed EEO complaints (Plaintiff's Ex. 185, p. 4) concerning the selection of Cox and Blackwood. The plaintiff filed an allegation of discrimination at the informal stage and alleged that the selection was tainted by race, sex and age discrimination (Plaintiff's Ex. 31). This was formalized in a complaint alleging the same basis of discrimination (Plaintiff's Ex. 28), with color subsequently added as a fourth basis of discrimination (Plaintiff's Ex. 23). *fn12" In support of these allegations, the plaintiff criticized the work of the two selectees (Tr. 34), alleged that their work subsequent to their selection has been no different than that of the GS-12s (Tr. 36), alleged that the GS-13 vacancy announcements were issued shortly after Cox and Blackwood returned from maternity leave (Tr. 68), alleged that the title "expert" for a GS-13 position does not appear in the OPM regulations (Tr. 69), and said that some managers preferred to work with the plaintiff, rather than Mr. Ware (Tr. 127). Plaintiff offered evidence of two statements to indicate overt sexism or ...


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