The opinion of the court was delivered by: GREEN
JUNE L. GREEN, UNITED STATES DISTRICT JUDGE
Plaintiff Elizabeth Coleman-Santucci
brought an action under Title VII of the Civil Rights Act of 1964 and the Age Discrimination in Employment Act (ADEA) alleging age and sex discrimination by the defendant. On March 31, 1982, this Court issued a judgment in favor of the plaintiff. Order and Judgment, dated March 31, 1982. The Court found that the Department of Health and Human Services (HHS) had discriminated against Ms. Coleman-Santucci on the basis of sex and age in failing to promote her to a GM-14 level. Memorandum Opinion, dated March 31, 1982. This Court ordered HHS to promote the plaintiff to a GM-14 position when one became available.
On June 10, 1982, the Court amended its earlier judgment to include an injunction prohibiting HHS from committing any future retaliatory acts against the plaintiff.
The Court has reopened this case to determine whether or not the defendant has subjected the plaintiff to retaliatory acts of discrimination in violation of this Court's 1982 judgment. Upon consideration of the testimony presented during the reopened trial, both parties' proposed facts and findings, the entire record and for the reasons set forth below, this Court finds that the defendant retaliated against the plaintiff in failing to appoint Mrs. Coleman-Santucci as Acting Director of the Division of Agency Operations and Management upon the retirement of Mr. John Belin. The Court further finds that the plaintiff failed to show any other retaliatory acts by the defendant, and failed to establish that she was entitled to a grade 15 promotion. The Court, therefore, denies further relief to the plaintiff, Mrs. Coleman-Santucci.
The plaintiff claims that since this Court's Judgment in 1982, the defendant has engaged in acts of discrimination in reprisal against her. Specifically, Mrs. Coleman-Santucci alleges five acts of discrimination.
First, the plaintiff alleges that the defendant refused to appoint her as the Acting Director of the Division of Agency Operations and Management ("DAOM") when then-Director of DAOM, John Belin, retired in January of 1986. Second, the plaintiff alleges that in March of 1986, a Task Force which she headed was denied a group award. Third, Mrs. Coleman-Santucci alleges that the defendant denied her the opportunity to lead an interdivisional team and denied her a temporary promotion in connection with the project. Fourth, the plaintiff alleges that her September 16, 1986 performance rating of "Excellent", rather than "Outstanding", was discriminatory because the defendant used inappropriate weightings of performance elements. Fifth, the plaintiff alleges that on September 28, 1986, she was assigned as Deputy Branch Chief to the Health Standards Branch, Division of Associated and Dental Health, Bureau of Health Professions. She alleges that this assignment was retaliatory because she was made a supervisor in a branch with no personnel and no program mandate.
A. Selection of Acting Director of DAOM
Mrs. Coleman-Santucci testified at trial that as a result of this Court's judgment in 1982, she was awarded a GM-14 position as Acting Director of DAOM.
In December 1985, Mr. John Belin, Division Director of DAOM, announced his retirement. The plaintiff had been told that upon Mr. Belin's retirement she would be made Acting Director. However, the day before Mr. Belin was to retire Dr. Florence Fiori, the Associate Bureau Director of the Office of Health Planning ("OHP"), informed Mrs. Coleman-Santucci that Mr. John Heyob had been selected to serve as Acting Director.
The plaintiff testified that she was perplexed by this choice. Mr. Heyob was, at the time, the Deputy Director of OHP. His appointment as Acting Director of DAOM meant he would be serving in both capacities at the same time. In addition, Mrs. Coleman-Santucci knew that Mr. Heyob was reluctant to accept the position. At trial, Mr. Heyob testified that he agreed to serve as Acting Director only because Dr. Fiori urged him to do so. The plaintiff further testified that when she asked Dr. Fiori for an explanation, Dr. Fiori responded, "Liz, why did you want to come back to planning? Didn't you know they'd be out to get you?"
Dr. Fiori denied posing these questions. She also denied that her decision to make John Heyob, rather than Mrs. Coleman-Santucci, the Acting Director of DAOM was made with retaliatory intent. Dr. Fiori testified that both Mr. Belin and Mr. Heyob had recommended against selecting Mrs. Coleman-Santucci for the position. Both Mr. Belin and Mr. Heyob felt that the selection of the plaintiff would be disruptive and create stress within the office.
Witnesses for both parties testified that there was much unrest in the Office of Health Planning at the time of the selection of Acting Director. The program was being threatened with closure. Dr. Fiori testified that she did not want to add to the stress of the employees in the program by selecting the plaintiff to serve as Acting Director during this crucial period.
In addition, Dr. Fiori testified that she was worried about an appearance of preselection in choosing an Acting Director. The Acting Director would run the division until a permanent director could be chosen. Dr. Fiori had announced that the permanent position of Director of DAOM would be advertised and eligible employees could compete for the position. Dr. Fiori consulted Dr. Donald Parks, the executive officer responsible for personnel matters. Dr. Parks advised her that selecting the plaintiff as Acting Director might create the appearance of preselection as Mrs. Coleman-Santucci would be a candidate for the Director's position. Dr. Parks recommended that Dr. Fiori select Mr. Heyob. Mr. Heyob would not be competing for the job because it did not involve a promotion for him; therefore, no charge of preselection could be raised. Furthermore, as the Deputy Director of the office, Mr. Heyob was qualified for the job, and he worked well with the employees in the division.
B. Section 1122 Task Force Group Award
In January of 1986, the Section 1122 Task Force which the plaintiff chaired was nominated for an outstanding group performance award. Both Dr. Fiori and Dr. Daniel Whiteside, the Bureau Director, approved the award nomination. However, the Awards Committee did not make an award to the Section 1122 Task Force. Nancy Corliss, who served at the Executive Secretary of the Awards Board in 1986, testified that the awards were scored anonymously by each member of the Committee and sent to Ms. Corliss. Ms. Corliss then ranked the nominees according to the cumulative scores. In a meeting of the Board, the Committee members determined how many awards would be given out and made awards to the top-ranked nominees. The Board's bylaws prohibited discussion of individual members of any group nominated for an award.
In 1986, when the Section 1122 Task Force was nominated, the Awards Committee made awards to the top six-ranked nominees. The plaintiff's group was ranked nineteenth out of twenty-one by the Committee.
In July 1986, the plaintiff was approached by Dr. Fiori, Mr. Heyob and Mr. James Mahoney and asked to head an interdivisional team which would focus on Section 1122 and Certificate of Need (CON) issues. Mr. Mahoney had been appointed recently as the Director of the Division of Analysis and Assistance in the OHP. His experience in the health planning area was minimal and he needed someone to provide technical assistance. He was impressed with Mrs. Coleman-Santucci's knowledge of the Section 1122 and CON programs. Mr. Mahoney thought that the plaintiff could be very helpful leading the interdivisional team. Dr. Fiori and Mr. Heyob concurred in Mr. Mahoney's judgment.
At a meeting on July 5, 1986, Dr. Fiori, Mr. Heyob and Mr. Mahoney presented their proposal to the plaintiff and asked her to consider it, along with any suggestions she might make for developing the team. The plaintiff came back to them with two suggestions. First, she suggested that she be promoted temporarily to a GM-15 if she were to head the task force. Second, she proposed that she report to Dr. Fiori rather than Mr. Mahoney.
The plaintiff testified that Dr. Fiori was angered by her proposal of a temporary promotion. The offer to head the task force was withdrawn and given to another employee. Mrs. Coleman-Santucci was named as an advisor to the project, but the task force never came to fruition. The plaintiff maintains that Dr. Fiori's reaction to her proposals, and the revocation of the offer illustrate that the defendant sought to prevent the plaintiff from advancement within the agency in reprisal for her earlier lawsuit.
The defendant argues the task force incident was unrelated to the plaintiff's previous actions. The defendant asserts that Mrs. Coleman-Santucci's proposals concerning the project were unrealistic. The project had not been designed as a promotional opportunity. It had been designed as a tool to assist Mr. Mahoney. Therefore, it was necessary that the team leader work directly with Mr. Mahoney. Furthermore, a promotion was not possible because the program was to be phased out in the following months. The defendant maintains that the ...