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HATCHER-CAPERS v. HALEY

March 20, 1992

LOLA HATCHER-CAPERS, Plaintiff,
v.
GEORGE W. HALEY, Chairman, Postal Rate Commission Defendant.



The opinion of the court was delivered by: CHARLES R. RICHEY

 In the above-captioned case, the plaintiff, an African-American female who is an attorney-advisor for the Postal Rate Commission ("PRC", "Commission"), contends that the PRC has failed to promote her because of race and gender discrimination. She brings this action pursuant to Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e-16.

 Trial was held in this case on January 13 and 14, 1992. The Court has carefully considered the submissions of the parties, the testimony of witnesses, the exhibits, the arguments of counsel, the applicable law, and the entire record herein, and concludes that the plaintiff has successfully proved that she was the victim of unlawful discrimination in the form of disparate treatment on the basis of her race and gender.

 This Opinion shall constitute the Court's findings of fact and conclusions of law pursuant to Fed. R. Civ. P. 52(a).

 I. Background

 The plaintiff works as an attorney-advisor for the Office of General Counsel ("OGC") of the PRC, which is part of the Executive Branch. The PRC is a small agency with about 60 employees. The OGC currently has five attorneys. Hatcher-Capers decl. at 9. The plaintiff began her career with the OGC in June 1980 at the pay level of EAS-19 (analogous to the GS-11 level on the federal pay scale). She understood from conversations with white female attorneys in the OGC that they had been promoted to EAS-22 grade levels (analogous to the GS-12 level) after being with the Commission for one year. When the plaintiff reached her first year anniversary at the Commission, she did not receive a promotion. She asked her supervisor, David Stover, why she did not received the promotion, and in response he recommended her for a promotion, which she then received.

 At the plaintiff's second year anniversary, she expected a promotion to the EAS-25 (analogous to the GS-13 level), based on her discussions with the white female attorneys in the OGC. When the plaintiff did not receive the promotion, she wrote a letter to the Chairman of the PRC and to the administrative office. Hatcher-Capers decl. at 17-19. In response, she received a memorandum dated October 25, 1982 from David Harris, Chief Administrative Officer, informing her that:

 Pl.'s Ex. 13 (emphasis in original). The plaintiff sought informal Equal Employment Opportunity ("EEO") counseling, and as a result, she was promoted to an EAS-25 grade level. Id. at 19. Since then, the plaintiff has remained at the EAS-25 grade pay level. The plaintiff brings this claim based on the Commission's failure to promote her to an EAS-28 position (analogous to the GS-14 level).

 Mr. David Stover, the General Counsel of the PRC and the plaintiff's supervisor, testified that there are five nonsupervisory attorneys in the Office of General Counsel. Three are ranked at the EAS-28 level or above. Two, the plaintiff and Ms. Kathleen Simkins, are ranked at the EAS-25 level. Mr. Stover testified that the plaintiff specializes in post office closing cases, which she handles with minimal supervision. Her writing does not require more substantive revisions than that of the other attorneys in OGC, and has not since approximately 1985. During her entire tenure with the OGC, the plaintiff has received ratings satisfactory or better; since she has been at the EAS-25 level, she has received ratings of "good" or "very good" from her supervisor. Mr. Stover also noted that the plaintiff has demonstrated increasing independence in her work over the years. He stated that if he could freely promote without the restrictions imposed by the Administrative Office, he would promote the plaintiff to the EAS-28 level, as well as Kathleen Simkins, the other EAS-25 attorney in the office.

 In approximately May, 1989, the plaintiff inadvertently saw the paycheck stub of Patricia Gallagher, another attorney-advisor in the OGC. She noted a large discrepancy between Ms. Gallagher's salary and her own, and was perplexed since Ms. Gallagher was hired by the Commission seven months after the plaintiff and appeared to have essentially the same job responsibilities. Hatcher-Capers decl. at 12. The plaintiff understood that the EAS-28 grade was the next rung on the career ladder and that the progression would occur noncompetitively. Therefore, on May 2, 1989, plaintiff went to see Cyril J. Pittack, the Personnel Officer and Assistant Administrative Officer, to discuss the possibility of promotion to the EAS-28 level. At their meeting, Mr. Pittack informed the plaintiff that the Commission passed a policy in the early 1980's which limited the number of EAS-28 positions. The plaintiff could not be promoted unless a vacancy opened up and she competed for the position. Id. at 13.

 Mr. Pittack clarified the nature of the policy at trial. He stated that the effect of the policy enacted in 1982 was to "freeze" the number of EAS-28 positions available at the Commission. Pittack decl. at P37. Before the policy was enacted, Mr. Pittack testified that there were four EAS-28 positions available in the OGC's office. Upon the promotion of Patricia Gallagher, three of these positions were filled, leaving one vacancy, which was frozen. Mr. Pittack explained that this policy was enacted to combat "grade creep", or the tendency for there to be too many upper-level personnel in relation to other personnel on the PRC's professional staff, and to avoid funding positions for which there was not sufficient work. Id. at PP35-37, 42. Mr. Pittack also testified that apart from the limitation policy enacted in 1982, there are two prerequisites for all promotions to the EAS-28 level which had been enforced irrespective of the 1982 policy: (1) promotions to EAS-28 positions were competitive; and (2) promotions to EAS-28 positions were made only if a vacancy existed. These requirements were in contrast to the promotion system for the attorneys up through the EAS-25 level, for which promotion was noncompetitive and vacancies were not required. The plaintiff here contests both the decision to limit the number of vacancies, and the requirements that promotion be given only competitively and when vacancies are available. As to the latter two requirements, the plaintiff contends that even if they existed before 1982, they were neither publicized to employees nor of any practical significance until that time.

 On May 16, 1989, in response to the information Mr. Pittack provided, the plaintiff contacted the Commission's Equal Employment Opportunity counselor. The plaintiff complained that she had not been promoted to the next-higher grade due to the 1982 change in the Commission's staffing policy. The plaintiff argued that the policy had a disparate effect on black and female employees, and that she had become aware of this policy only within the preceding two weeks. Efforts to resolve the plaintiff's complaint were unsuccessful, and on June 7, 1989, the counselor issued the plaintiff a Notice of Right to File Discrimination Complaint.

 On July 15, 1989, the plaintiff filed her agency complaint based on Title VII and the Equal Pay Act. On August 18, 1989, the PRC dismissed the Equal Pay Act and the Title VII claims. Pl.'s Ex. 2. The plaintiff timely appealed the PRC's decision to the Equal Employment Opportunity Commission ("EEOC"), which affirmed the PRC. By Decision dated November 27, 1989, the EEOC held that the plaintiff failed to state a claim under the Equal Pay Act and that the Title VII claim was untimely. The plaintiff filed a petition for the EEOC to reopen its decision, which it refused. The plaintiff then filed suit in this Court.

 On May 1, 1991, this Court dismissed the plaintiff's Equal Pay Act and tort claims and denied defendant's request for summary judgment on the Title VII claim. On September 30, 1991, the Court denied the defendant's second motion for summary judgment on the Title VII claim, finding that there remained questions of material fact regarding the timeliness of plaintiff's claim. On January 9, 1992, the Court granted defendant's motion to strike jury demand and for compensatory damages. *fn1" Trial began on January 13, 1992.

 II. Analysis

 The plaintiff alleges that the defendant violated Title VII both because she received disparate treatment and because the alleged policy upon which defendant relied in denying her promotion has a discriminatory impact on women and African-Americans. The defendant denies that any illegal discrimination occurred, and further contends that the plaintiff's claim should be dismissed in any event as untimely.

 A. Timeliness of the Claim

 Under EEOC regulations, a federal employee must submit a discrimination complaint to the agency counselor within thirty days of the alleged discriminatory event or action, or within thirty days of the date that she knew or reasonably ...


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