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.
Ms. Jones was more than simply a "jack of all trades." The devotion to and quality of her work became evident at trial. Her performance evaluations throughout the years were uniformly outstanding. Plaintiff's Group Exhibit (Pl. Gr. Ex.) 1. Moreover, the special skills that Jones possessed were described by a number of witnesses. One co-worker, Bernard Phifer, agreed with an evaluation by plaintiff's supervisor which noted that she "demonstrated the ability to work with the most difficult social problems and to be willing to attempt new treatment methods with a high degree of success." Tr. 188-89. Richard Artis, Jones' assistant at OPP, stated that "she exhibited the kinds of leadership qualities that I can professionally respond to," including delegation of authority and creativity in developing new solutions to old problems. Tr. 215-16. Calling Jones his "alter ego," Albert Russo extensively described the qualities he valued in Joan Jones:
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.