of Special Services, at the level of DS-17/2. In essence, the position would entail serving the Director of DHS as a "high-level advisor for creative initiatives for a broad range of health and social services issues." Pltf. Mem. at 3. Defendants, "for settlement purposes only," offered plaintiff "the position of Special Assistant to the Director, (Developmental Zone Coordinator), which previously had been planned," at a DS-16 level, to implement a 1986 proposal to establish development zones east of the Anacostia River. Def. Mem. at 3.
Neither proposal is tenable. In the presence of another remedy, it is inappropriate to create an entirely new position, as the plaintiff would have it, and thereby interfere with the policymaking and personnel decisions that rightly belong to public servants. Furthermore, plaintiff has not shown to the Court's satisfaction that she would have reached the level of DS-17/2 had her promotional course not been diverted by the discrimination.
The District of Columbia's proposal is also unacceptable. This new (albeit planned-for) position has several flaws. To cite just one example, it would bring with it and its budget of approximately $ 100,000 the supervision of two employees: one analyst and one clerical staff person. See Transcript of Hearing of November 21, 1989 (Tr.), at 39-40. This stands in marked contrast to plaintiff's current position as Chief of the Office of Self-Sufficiency, where she has a staff of ten. More importantly, when she had been Acting Chief of the OPP, she had been responsible for approximately fifty staff persons. Carl Wilson, the person appointed Chief of OPP instead of plaintiff, see Opinion at 8, currently has thirty-eight staff persons and a total budget of about $ 2.2 million. Tr. at 44. Clearly, the District of Columbia's proposal does not begin to provide the management responsibility or authority plaintiff deserves, which she previously had and successfully handled for a lengthy time, which she would have had absent discrimination, and with which she can best serve DHS.
The Court therefore concludes that Ms. Jones must be promptly placed in the position of Chief of OPP, where she was Acting Chief for almost two years (January 1983 through early December 1984). See (Slip) Opinion at 2-3. It cannot be overlooked that it was Rivers himself who gave her an excellent performance evaluation for a one-year period in which he observed her work. See Opinion at 9. This Circuit has held that "bumping," i.e., reinstating an employee to the position to which she is entitled and thereby displacing an innocent incumbent, is an appropriate remedy in these circumstances. Lander. While neither party urged the bumping remedy, the fact remains that the position of Chief of OPP is the position to which Joan Jones is entitled and to which she would have gone, had the illegal discrimination not occurred. The District of Columbia has offered no other commensurate post, not only in terms of responsibility and pay, but also in terms of title and support staff. Accordingly, in order to be made whole, Ms. Jones must be given this position.
The characteristics of the position of Chief of OPP and the nature of the staffing at DHS further convince the Court of the appropriateness of bumping in this case. This action involves "a unique, top-level job, one for which no equivalent vacancy could be projected." Lander, 888 F.2d at 159 (R.B. Ginsburg, J., concurring). Defendants claimed that there are ten DS-16 positions in DHS, and that one might become available, but as explained in the Opinion, Ms. Jones' experience and background make the OPP position the best for her abilities and qualifications; no other current position can do. Furthermore, at the January 24, 1990 hearing, the parties acknowledged that there are no unencumbered positions available at the DS-16 level or above within DHS. See also Tr. at 29, 33. There is no next available promotion or vacancy that plaintiff could await, as in the "rightful place" approach to remedying illegal discrimination in employment. See Lander, 888 F.2d at 159.
It is, of course, highly unfortunate that an innocent person has to be hurt by this remedy, but as this circuit has noted, there is nothing to indicate that the innocent beneficiary has a superior equitable claim to the job. Lander, 888 F.2d 157. No one disputes that Mr. Wilson has a weaker reliance interest in his current position than Ms. Jones.
Had there been an immediate order of relief, the Court would have proposed and does now order that plaintiff Joan Jones be placed in the position of Chief of the Office of Policy and Planning, DHS, at the level of DS-16/6.
Accordingly, it is hereby
ORDERED that defendants, David Rivers and the District of Columbia, jointly and severally, pay plaintiff $ 10,395 in compensatory damages, and a separate judgment is entered herein for that amount; it is
FURTHER ORDERED that defendants, their agents, attorneys, and all those acting in concert with them, are hereby permanently enjoined from any acts of discrimination against Joan Jones on the basis of sex, or any acts of retaliation against Joan Jones; it is
FURTHER ORDERED that defendants forthwith place plaintiff in the position of Chief of the Office of Policy and Planning in the District of Columbia Department of Health Services, at the pay level of DS-16/6, with accompanying backpay and benefits, equal to the difference between the pay/benefits plaintiff actually received and the pay/benefits plaintiff would have received absent the discriminatory treatment herein; it is
FURTHER ORDERED that the parties adhere to the following briefing schedule concerning attorneys' fees: On or before March 5, 1990, plaintiff shall submit her petition for attorneys' fees and costs; opposition from defendants shall be due on or before March 20; reply, if any, by March 26, 1990.
IT IS SO ORDERED.
January 31, 1990.
JUDGMENT - January 31, 1990, Filed
In accordance with the Order issued contemporaneously this date, judgment is entered in the amount of $ 10,395, in favor of plaintiff Joan Jones, and against defendants David Rivers and the District of Columbia, jointly and severally.
January 31, 1990.