and eliminated plaintiff from consideration.
The first clue that Mr. Negron had been preselected for the DAE position came in June 1983 when Dr. Harris appointed Mr. Negron "Acting Director." This appointment was suspect for many reasons. First, it was contrary to the express recommendation of the incumbent DAE, Mr. Hurd. Second, it was inconsistent with the "Statement of Qualifications" for the DAE position because Mr. Negron, unlike plaintiff, possessed neither a college degree nor an M.B.A. Third, the position vacancy was not posted--in violation of Howard University procedure--which gives rise to an inference that Dr. Harris and Mr. Chalmers had already decided whom to appoint. Fourth, the testimony of Mr. Pervine--that Mr. Negron had been promised the position--corroborates the Court's inference that Mr. Negron was preselected. Fifth, and perhaps most importantly, Dr. Harris quickly vacated his appointment of Mr. Negron to Acting DAE and froze the DAE position. Although he offered no explanation for this action in 1983, he testified at trial that he vacated the appointment for budgetary reasons. For the reasons set forth in Findings of Fact 14-19, supra, the Court concludes that Dr. Harris vacated the 1983 appointment of Mr. Negron for reasons unrelated to austerity. Rather, it became apparent to Dr. Harris that Mr. Negron's lack of a college degree was a serious impediment to his final appointment to the DAE position. See FOF 8.
The second event which facilitated Mr. Negron's final appointment over plaintiff was the 1986 transfer of plaintiff from the Assistant DAE position to the office of the Dean for Student Life and Activities. Although the transfer did not diminish plaintiff's salary grade, it was tantamount to a demotion: plaintiff's overall responsibilities were reduced; he was limited to performing menial tasks; and, he reported to a lower echelon in the university chain of command. Moreover, the evidence shows that the purpose of the demotion was to keep plaintiff out of contention for the DAE position. To be sure, when Dr. Harris reversed himself and vacated the 1983 appointment, he did not abandon his plan to someday appoint Mr. Negron to DAE. Instead, he determined that the most prudent way to implement his plan was to wait for Mr. Negron to earn a college degree, and to destroy plaintiff's viability for promotion to the position. The latter was accomplished by transferring plaintiff to Student Affairs, where he had little responsibility, and where he was isolated from contact with the upper levels of management.
The nexus between the unsuccessful 1983 appointment and the 1986 demotion is apparent: the events in 1983 show that Dr. Harris' intent was to place Mr. Negron in the DAE position; the 1986 demotion of plaintiff paved the way for this appointment once Mr. Negron achieved the minimum educational requirements for the position. The critical question, however, is whether these two events, both of which lie outside of the three-year statute of limitations, are sufficiently related to the 1987 appointment of Mr. Negron to DAE to warrant the application of the continuing violation theory.
Unlike United Air Lines, Inc. v. Evans, 431 U.S. at 558 and Delaware State College v. Ricks, 449 U.S. 250 at 257-58, 66 L. Ed. 2d 431, 101 S. Ct. 498, the subsequent act attacked by the plaintiff in this case, to-wit, the 1987 appointment of Mr. Negron, did not merely give present effect to past discrimination. Moreover, the 1983, 1986 and 1987 acts complained of were not discrete and wholly separate events. Cf. Milton v. Weinberger, 207 U.S. App. D.C. 145, 645 F.2d 1070, 1076 (D.C. Cir. 1981) (where plaintiffs sought relief from specific, unrelated instances of discrimination). Rather, the 1987 appointment of Mr. Negron was rife with evidence that he had been preselected. Furthermore, the appointment climaxed a series of preceding, discriminatory events.
Regarding the 1987 appointment, this Court has found, supra: 1) that Dr. Harris' explanation for the sudden need to re-establish the position is unworthy of belief (FOF 30-31); 2) that the proximity in time between Mr. Negron's receipt of a college degree and his appointment shows that Dr. Harris had predetermined who would fill the DAE vacancy (FOF 32); 3) that Dr. Harris' failure to post the vacancy was in violation of Howard University regulations and procedure (FOF 34-36);
4) that Mr. Negron did not meet the qualifications for the position even after he earned his college degree (FOF 39-40); and 5) that plaintiff was more qualified for the position than Mr. Negron (FOF 43). Based on these findings, it cannot be said that the 1987 appointment was a neutral, nondiscriminatory event. More importantly, there can be no genuine dispute that the 1987 appointment was part of a "dogged pattern" of willful discrimination. See Shehadeh, 595 F.2d at 725 n.73. Indeed, it consummated a four-year plan in which Dr. Harris and Mr. Chalmers did whatever was necessary to ensure Mr. Negron's appointment to DAE at plaintiff's expense. See Bruno v. Western Electric Co., 829 F.2d at 961. Therefore, the 1987 appointment was part of a continuing practice of intentional discrimination.
Defendant places much reliance on Valentino v. United States Postal Service, 218 U.S. App. D.C. 213, 674 F.2d 56 (D.C. Cir. 1982).
In Valentino, the District of Columbia Circuit Court of Appeals affirmed this Court's ruling that the plaintiff's class action gender discrimination claims were time-barred. Id. at 65. This Court had held that the plaintiff could not rely on the continuing violation theory to avoid the time bar on her pre-1976 claims, because in 1976 the defendant adopted a gender-neutral promotional system which eliminated bias against women seeking promotions. Id. Here, in contrast, defendant has taken no affirmative steps to ensure a fair promotional system at Howard University. To the contrary, Dr. Harris eschewed the performance appraisal system advocated by the Director of Personnel, Mr. Newman. Further, Dr. Harris disregarded Howard University's posting requirements both in 1983 and in 1987, and the university has ignored the Equal Employment Opportunity Commission's directive ordering it to remedy its illegal policies on age (see FOF 45). Thus, unlike Valentino, where the Postal Service took corrective action, here no neutral promotional system has been installed, as required by the ADEA, even though the Equal Employment Opportunity Commission has specifically directed the university to take remedial measures.
In summary, the theory of plaintiff's case has consistently been that defendant's acts of alleged discrimination--the 1983 failure to promote, the 1986 transfer, and the 1987 failure to promote--were all part of an overall, continuing plan to ensure Mr. Negron's appointment to DAE at plaintiff's expense. See Bruno v. Western Electric Co., 829 F.2d at 962 (continuing violation where the plaintiff alleged that defendant schemed to force him into retirement). Because the evidence supports the inference that these three acts were both invidiously discriminatory and related to each other, the Court holds that plaintiff has properly alleged a continuing violation of the ADEA.
Therefore, his complaint has been timely filed.
2. Age Discrimination
The ADEA provides, in pertinent part, that it shall be unlawful for an employer
to fail or refuse to hire or to discharge any individual or otherwise discriminate against any individual with respect to his compensation, terms, conditions or privileges of employment, because of such individual's age.