finder of fact" if a plaintiff is to establish a prima facie case. Frazier at 1453.
The plaintiff has failed to make her statistics sufficiently meaningful to the Court to warrant a finding in her favor on the issue of the disparate impact theory. Rather, she has presented to the Court some numerical compilations for the agency, which she claims evidence discrimination. However, given the relatively small size of the agency, and in particular, the small size of the OGC, the Court is not convinced these figures are significant. For example, it is true that no black female attorney has been promoted to the EAS-28 level; however, since the plaintiff is the only black female attorney, it is difficult for the Court to discern a pattern of discrimination from this information. Too many other reasons could account for the disparity.
Therefore, the plaintiff's disparate impact claim must fail, but, as previously stated, she has prevailed on her disparate treatment claim, and is entitled to relief.
In determining the nature of the relief to which the plaintiff is entitled, the Court finds that but for the discriminatory conduct on the part of the defendant, the plaintiff would have been promoted and would now hold an EAS-28 position, because the policy upon which the defendant relies to justify its action is a simply a pretext for discrimination. See, e.g., Bibbs v. Block, 778 F.2d 1318, 1319 (8th Cir. 1985) (en banc). In light of this finding, the Court determines that the following remedies are appropriate. First, the plaintiff should be promoted to the EAS-28 grade immediately, as this is the position that she would hold but for the illegal discrimination. To the extent that a "vacancy" is not available at the EAS-28 grade, the defendant shall create one. In addition, the plaintiff is entitled to back pay in the amount of the difference in pay she would have received if she had been promoted to the EAS-28 position on July 15, 1987, including the appropriate in-grade increases. The plaintiff is also entitled to whatever increases in benefits would have accrued had she been promoted, and to an award of reasonable costs and attorneys fees.
In accordance with 42 U.S.C. § 2000e-5(g), the back pay award shall commence two years prior to the date the plaintiff filed her formal charge with the EEOC, that is, two years prior to July 15, 1989, or July 15, 1987, and continue through the date of this Opinion and Order. The Court finds that the beginning date is appropriate both because it is permissible under the statute and because according to the testimony of her supervisor, David Stover, the plaintiff has been performing work on a par with the EAS-28 attorneys since approximately 1985. By 1987, then, she was certainly entitled to a promotion to the EAS-28 level, and would have received it were it not for the discrimination.
The parties shall confer and negotiate the correct discrete amounts to be awarded to the plaintiff as back pay and benefits, and shall advise the Court thereof within fifteen (15) days of the date of this Opinion and accompanying Order. Plaintiff's counsel shall also submit her application for attorneys' fees and costs within fifteen (15) days of the date of this Opinion and accompanying Order.
For all of the foregoing reasons, the Court shall enter judgment for the plaintiff in this action. While the plaintiff has failed to make out a disparate impact claim, she has proved that the Postal Rate Commission's failure to promote her constituted disparate treatment on the basis of her race and gender, in violation of Title VII. Accordingly, the Court shall order the plaintiff to be promoted to the EAS-28 level, with backpay, costs, and attorneys' fees.
An appropriate Order shall be entered on this date in accordance with this Opinion.
EDITOR'S NOTE: The following court-provided text does not appear at this cite in 780 F. Supp. 1054.
March 20, 1992
CHARLES R. RICHEY
UNITED STATES DISTRICT JUDGE
ORDER - March 20, 1992, Filed
In accordance with the Court's Opinion filed on this date in the above-captioned action, and for the reasons stated therein, it is, by the Court, this 20 day of March, 1992,
ORDERED that judgment shall be entered for the plaintiff on the disparate treatment claim in the above-captioned action, while the disparate impact claim shall be, and hereby is, dismissed; and it is
FURTHER ORDERED that the defendant shall promote the plaintiff to the EAS-28 level, effective immediately; and it is
FURTHER ORDERED that the defendant shall award the plaintiff back pay from July 15, 1987 through the date of this Order, in the form of the difference in pay she would have received had she been installed in an EAS-28 position on July 15, 1987, including in-grade pay increases and any differences in benefits; and it is
FURTHER ORDERED that the plaintiff shall be awarded her reasonable costs and attorneys' fees, and counsel for the plaintiff shall submit her application for attorneys' fees and costs within fifteen (15) days of the date of this Order.; and it is
FURTHER ORDERED that the parties shall confer and negotiate the appropriate discrete amount that the plaintiff should receive in the form of her back pay award and such other relief as she is entitled to receive in accordance with the Court's Opinion of even date herewith, and shall advise the Court thereof within fifteen (15) days of the date of this Order.
CHARLES R. RICHEY
UNITED STATES DISTRICT JUDGE