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JONES v. RIVERS

July 26, 1989

JOAN V. JONES, Plaintiff,
v.
DAVID RIVERS, et al., Defendants


Joyce Hens Green, United States District Judge.


The opinion of the court was delivered by: GREEN

JOYCE HENS GREEN, UNITED STATES DISTRICT JUDGE

 Plaintiff Joan V. Jones brought this action against the District of Columbia and David Rivers, then Director of the District's Department of Human Services (DHS), alleging sexual discrimination and retaliation arising out of her employment at DHS. After a trial on the merits, the Court concludes, for the reasons set forth below, that plaintiff has proven by a preponderance of the evidence her case of discrimination and retaliation.

 I. Background

 Joan Jones is a 47 year-old female who has, with minor exceptions, enjoyed a long career of employment with the District of Columbia in the area of health and social services. She began working for DHS' predecessor in 1965, starting as a DS-7 social worker and eventually reaching the DS-11 level as supervisor of a unit that handled over 2000 cases. Trial Transcript (Tr.) 81-84; Joint Statement of Material Facts Not in Dispute ("JS") 1. In 1973, Jones was selected as a DS-12 social welfare specialist in the office of Albert Russo, the Assistant Director for Social Services. Russo later became Deputy Director and then Director of Social Services, and plaintiff was selected as his Executive Assistant and Executive Officer, respectively. By 1978, Ms. Jones had been promoted to Assistant to the Director for Social Services and had reached the DS-15 grade level.

 In 1979, DHS was reorganized as a result of the new administration entering under Mayor Marion Barry. Ms. Jones' position was not affected by the change, but Albert Russo resigned in 1980 and was replaced by James Burford. Dissatisfied with what she considered scaled-back responsibilities under Burford, Jones left the District government in January 1982 to accept a one-year appointment at Howard University's Graduate School of Social Work. In January 1983, plaintiff returned to DHS when she was selected for a temporary appointment as the Acting Chief of the Office of Policy and Planning (OPP), a position at the DS-15 level. In April 1983, however, that position was converted from DS-15 competitive status to the excepted service at the DS-16 level; it therefore became one of the 100 positions whose occupants serve at the pleasure of the Mayor. JS 8; D.C. Code §§ 1-610.1 et seq. At approximately the same time, Burford left DHS and was replaced as Director of DHS by David Rivers, who had been serving as Deputy Director since 1981. Jones received another temporary appointment as Acting OPP Chief in December 1983. Rivers was confirmed as the permanent Director of DHS in February of 1984.

 The turning point in plaintiff's employment with DHS was the year 1984. In her capacity as a member of the Contracts Review Committee (CRC), an interagency group responsible for reviewing and approving DHS contracts in excess of $ 25,000, Jones attended a meeting in June 1984 and voted against a contract to provide services for the homeless at the Pitts Motor Hotel. On December 2, 1984, Rivers selected Carl Wilson, who was then serving as Director of DHS' State Health Planning and Development Agency (SHPDA), to become the permanent DS-16 Chief of OPP. On that same day, plaintiff was reassigned as Assistant to the Director for Special Initiatives, a DS-15 position. Shortly thereafter, Jones filed an internal charge of sex discrimination with Rivers, who denied the charges. In June 1985, plaintiff filed charges of discrimination and retaliation with the Equal Employment Opportunity Commission (EEOC).

 Ms. Jones thereafter instituted this action against the District of Columbia and David Rivers. *fn1" Plaintiff alleges that a pattern of discrimination exists in DHS towards women above the DS-14 grade level and contends that, since April 1980, she has been "thwarted in her efforts at career advancement" by virtue of denial of promotions, reassignments to undesirable positions, and preferential treatment given to less-qualified male employees. Complaint paras. 6, 7. In Counts 1, 3 and 4, Jones maintains that this pattern and these acts constitute impermissible sex discrimination, in violation of Title VII of the Civil Rights Act of 1964, 42 U.S.C. §§ 2000e et seq., and 42 U.S.C. § 1983. Plaintiff also asserts, in Counts 2, 5 and 6, that David Rivers impermissibly retaliated against her for opposing the Pitts contract and for filing her EEOC charges, in contravention of Title VII and Section 1983. *fn2" Having considered all of the testimony, exhibits and evidence adduced at the five-day bench trial, the parties' post-trial submissions, and the entire record in this case, the Court finds, for the reasons articulated below, that plaintiff Joan Jones has successfully proved by a preponderance of the evidence that she was discriminated against because of her sex and that she suffered retaliation during her employment with the District of Columbia.

 II. Discussion

 Plaintiff's claims fall into three categories. She asserts that she was the victim of sex discrimination because Carl Wilson, not she, was chosen for the OPP Chief position. She also maintains that Title VII was transgressed because David Rivers retaliated against her for filing an EEOC complaint. Finally, she contends that her First Amendment rights were infringed because her opposition to the Pitts Hotel contract contributed to her nonselection for OPP Chief.

 A. Discrimination Claims

 1. Standards. Jones asserts sex discrimination under both Title VII and 42 U.S.C. § 1983. Disparate treatment occurs under Title VII when a plaintiff shows that her "employer treats some people less favorably than others" because she is a woman. Furnco Construction Corp. v. Waters, 438 U.S. 567, 577, 57 L. Ed. 2d 957, 98 S. Ct. 2943 (1978). The order and quantum of proof in disparate treatment cases was set forth by the Supreme Court in McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802, 36 L. Ed. 2d 668, 93 S. Ct. 1817 (1973), and its progeny. To succeed on her claim, plaintiff must first establish a prima facie case of discrimination by a preponderance of the evidence. Texas Department of Community Affairs v. Burdine, 450 U.S. 248, 253, 67 L. Ed. 2d 207, 101 S. Ct. 1089 (1981). In the context of a failure to promote, this showing consists of proof that the plaintiff (1) belongs to a protected group, (2) was qualified for and applied for a promotion, (3) was considered for and denied the promotion, and (4) was passed by in favor of another employee with similar qualifications who was not within the protected group. Bundy v. Jackson, 205 U.S. App. D.C. 444, 641 F.2d 934, 951 (D.C. Cir. 1981).

 Once a prima facie case has been made, a presumption of unlawful discrimination arises, see United States Postal Service Board of Governors v. Aikens, 460 U.S. 711, 714, 75 L. Ed. 2d 403, 103 S. Ct. 1478 (1983), which the employer may rebut by "articulat[ing] some legitimate, nondiscriminatory reason" for the challenged action. McDonnell Douglas, 411 U.S. at 802. If defendant carries this burden, the presumption "drops from the case," Burdine, 450 U.S. at 255, and the party alleging discrimination must "demonstrate that the proffered reason was not the true reason for the employment decision [and] that she has been the victim of intentional discrimination." Id. at 256. Where, as here, a case has been fully tried on the merits, the question whether plaintiff has made out a prima facie case "is no longer relevant" and the court should proceed to the ultimate issue of whether discrimination has in fact occurred. Aikens, 460 U.S. at 715. Finally, the McDonnell Douglas framework also applies to plaintiff's claim that defendants' acts of sex discrimination violated her due process rights protected under 42 U.S.C. § 1983. Oates v. District of Columbia, 262 U.S. App. D.C. 360, 824 F.2d 87, 90 (D.C. Cir. 1987).

 2. Analysis. As noted above, plaintiff's discrimination claim is that David Rivers selected Carl Wilson, rather than her, to be Chief of OPP because she was a woman. A variety of factors, described in detail below, convinces the Court that sex discrimination promoted the selection of Carl Wilson.

 Joan Jones enjoyed a remarkable and distinguished career in the Department of Human Services. She rose rapidly through the agency from a DS-7 social worker to a DS-15 Assistant to the Director for Social Services. Plaintiff performed a wide variety of tasks along the way. She served as a caseworker for the elderly, she was the supervisor of a family services unit, and she dealt with rental payment and child care problems as a social welfare specialist. While managing the Director's office as executive assistant to Albert Russo, Ms. Jones took the lead on projects relating to social rehabilitation, day care, targeted jobs and employee courtesy. In her spare time, plaintiff managed to raise a family and obtain a masters degree in social work from Howard University.

 
I've always regarded Mrs. Jones as a rather extraordinary woman, with great ability, great empathy, and great feeling for clients. I often told her that she was not only client-oriented, but also community oriented. She really cared . . . .
 
Several times the thought [putting Jones in charge of running a specific program] did entertain my mind, but for perhaps selfish reasons, I discarded the idea . . . . And while I felt that she had certainly the ability to run several major programs within the Department, I felt that I wanted her to continue in her staff position because of the invaluable services she was providing.
 
During the seven years Mrs. Jones worked with me, she extraordinarily manifested the highest qualities of leadership that I have yet encountered up to that point in time in any female employee, or in any male employee.

 Tr. 254-259. Carl Wilson, a subordinate of Jones until he was selected as Chief of OPP (and a man who certainly had no motive to give such testimony), agreed that she was "very analytical," very helpful," "very patient," and "cooperative." Tr. 326. Even David Rivers admitted that Jones was an ...


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