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WARE v. HOWARD UNIV.

March 17, 1993

IVAN WARE, Plaintiff,
v.
HOWARD UNIVERSITY, INC., Defendant.



The opinion of the court was delivered by: OLIVER GASCH

 Plaintiff, a Howard University employee for the past eighteen years, has filed suit in this Court alleging that Howard University has discriminated against him based on his age, in violation of the Age Discrimination in Employment Act ("ADEA"), 29 U.S.C. § 621 et seq.1 Specifically, plaintiff asserts that Howard University violated the ADEA by failing to promote him to the position of Director of Auxiliary Enterprises in 1983, by demoting him in 1986, and by again failing to promote him to the position of Director of Auxiliary Enterprises in 1987. Defendant denies these assertions and contends that plaintiff was passed over for promotion and transferred out of his position for reasons which are unrelated to his age.

 Trial by Court commenced on November 9, 1992, and concluded on November 12, 1992. *fn2" The parties thereafter submitted, in addition to their pretrial briefs and memoranda, proposed findings of fact and conclusions of law. The Court's findings of fact and conclusions of law, based on its evaluation of the credibility of the witnesses and the exhibits received in evidence, are set forth below.

 FINDINGS OF FACT

 1. Plaintiff, Ivan Ware, was appointed to the position of "Analyst" in the office of the Director of Auxiliary Enterprises ("DAE") at Howard University in July of 1975. *fn3" The office of the DAE operated under the authority of the Vice-President for Business and Fiscal Affairs, and it was responsible for the management and control of the university food services, the bookstores, the post office, the vending and ticket operations.

 2. Prior to his appointment, plaintiff spent over twenty-five years in the United States Air Force, where, among other duties, he managed and supervised food service, postal service, a bookstore and sales and concession operations. This experience provided plaintiff with excellent training for his work in the office of the DAE at Howard University.

 3. In 1979, plaintiff was promoted to the position of "Management Analyst" in the office of the DAE. Shortly thereafter, he began to function as an assistant to the Director. In July, 1981, he was formally appointed to the position of "Assistant Director," which carried an HA salary grade of 13. *fn4"

 4. In March of 1983, Mr. James Hurd, who had served as DAE for eighteen years, submitted a letter to Dr. Caspa Harris, who was then Vice-President for Business and Fiscal Affairs, declaring his intent to resign as DAE on June 30, 1983, in accordance with the Howard University Employee (Non-Faculty) Handbook's "normal retirement date." Mr. Hurd recommended that Dr. Harris appoint plaintiff to replace him as DAE.

 6. Mr. Karlyle Pervine, a general contractor who submitted an unsuccessful bid to run the University Bookstore in 1983, testified that Dr. Harris' Executive Assistant, Alexander Chalmers, was aware of the fact that plaintiff sought the DAE position. According to Mr. Pervine, Mr. Chalmers was not receptive to plaintiff's pursuit of the DAE position, and told Mr. Pervine that he planned to "put [plaintiff] in a corner and leave him." Mr. Chalmers also told Mr. Pervine that Mr. Jaime Negron, the Director of the University Bookstore Systems, had been previously promised the DAE position. *fn5"

 7. Contrary to Mr. Hurd's letter of recommendation, Dr. Harris appointed Mr. Jaime Negron to the position of "Acting Director of Auxiliary Enterprises," with final appointment conditioned upon the President's approval.

 8. On June 21, 1983, Dr. Harris wrote Mr. Negron a letter informing him of his new appointment. Dr. Harris also wrote, "upon completion of your academic work for a Bachelors Degree, you will be given consideration for appointment to the Director's position on a permanent basis at the full annual salary rate."

 9. At the time of his appointment, Mr. Negron was forty-three years of age and plaintiff was sixty years of age.

 10. The Court finds that Mr. Negron's appointment was not in compliance with the "Statement of Qualifications" listed in the DAE "Position Description" which required, inter alia, that applicants possess a college degree. The statement also expressed a preference for a candidate with a graduate degree in business administration (an M.B.A). Unlike the plaintiff, Mr. Negron possessed neither a college degree nor an M.B.A at the time of his 1983 appointment.

 11. After he appointed Mr. Negron to DAE, Dr. Harris offered plaintiff Mr. Negron's former job as Director of the University Bookstore Systems, which carried a higher salary grade than Assistant Director of Auxiliary Enterprises. Plaintiff rejected the offer for three reasons: First, he considered the Director of Bookstores position subordinate to his current position as Assistant DAE. Second, he believed that acceptance of the offer would constitute acquiescence in the appointment of Mr. Negron as DAE. Third, he did not want to inherit the financial "mess" which Mr. Negron had allegedly created at the bookstore.

 12. Shortly after Dr. Harris appointed Mr. Negron to the position of Acting DAE, he rescinded the appointment.

 13. On July 11, 1983, Dr. Harris wrote plaintiff a letter informing him that the DAE position had been vacated and would not be filled "for an indefinite period." Dr. Harris informed plaintiff that the Director of the University Bookstore Systems would no longer report to the office of the DAE but would report to Mr. Chalmers in the office of the Vice-President for Business and Fiscal Affairs. Dr. Harris also instructed plaintiff to continue to work as the Assistant DAE, and to report to Mr. Chalmers since the DAE position would not be filled.

 14. At the time of his revocation of the appointment of Mr. Negron to Acting DAE, Dr. Harris did not inform plaintiff of the reason for vacating the DAE position. He testified at trial, however, that he took this action because a hiring freeze had been imposed by a special task force on the university's deficit. Dr. Harris testified that the task force, which he chaired, specifically recommended that the DAE position be frozen. He further testified that he did not believe it was necessary to tell plaintiff his reason for freezing the position.

 15. The Court finds Dr. Harris' explanation for the sudden revocation unpersuasive. Defendant failed to produce any documentary evidence which substantiated Dr. Harris' testimony that a university hiring freeze was instituted in 1983. Defendant did submit Howard University budgets which showed both that total spending on Auxiliary Enterprises and total salaries for the office of the DAE decreased from 1983 to 1987. However, it would be unreasonable for the Court to extrapolate from these statistics that a hiring freeze had actually been imposed. Had there been such a freeze, the Court believes it would have been documented.

 16. Dr. Harris' testimony concerning the alleged hiring freeze on staff positions is contradicted by former President Cheek's July 1, 1985, memorandum to the university community. This memorandum reorganized the office of the Vice-President for Business and Fiscal Affairs and, more importantly, created four new senior level middle management positions in that office. The creation of these new positions casts doubt on Dr. Harris' testimony.

 17. The Court finds that Dr. Harris' testimony regarding the budget freeze is further contradicted by the deposition testimony of Mr. Arthur Newman, the former Director of Personnel. *fn6" Mr. Newman testified that he had personal knowledge that certain high level university officials received "secret deals" during the time period when Dr. Harris claims to have imposed austerity measures.

 18. The Court finds that Mr. Newman's testimony was corroborated by Ms. Early Doss. Ms. Doss is the former Assistant to the Vice-President for Business and Fiscal Affairs, Assistant Treasurer and Director of Cash Management and Investments. Ms. Doss testified that she had personal knowledge of some unusual payments which were made to retiring vice-presidents and other senior level officials in 1987. She also testified that in 1990, the General Counsel, Mr. Bernstein, received a $ 214,500.00 payment through a "special" or "supplemental" agreement that was not included in his retirement package.

 19. Based on the testimony of Ms. Doss and Mr. Newman, the Court infers that, contrary to Dr. Harris' testimony, the university failed to impose employment austerity measures.

 20. Because the position of DAE remained vacant after Dr. Harris rescinded his appointment of Mr. Negron, plaintiff performed the functions of the DAE from July 1983 to December 1986.

 21. Although plaintiff's responsibilities increased during this time period, he received no additional compensation. Plaintiff brought this disparity to the attention of Mr. Clifford Martin, then Assistant Vice-President of Human Resources, by Memorandum dated June 30, 1986. Mr. Martin responded by advising plaintiff to raise the matter with Dr. Harris.

 22. In October 1986, plaintiff learned that he would soon be transferred, along with two of the remaining functions of the office of the DAE (food services and ticket sales), to the office of the Dean for Student Life and Activities.

 23. On October 27, 1986, plaintiff wrote a letter to Dr. Harris in which he objected to the proposed transfer and requested that he be given "consideration for career advancement opportunities commensurate with [his] education, training, and extensive experience." Dr. Harris did not respond to plaintiff's letter.

 24. On December 3, 1986, Alexander Chalmers informed plaintiff that the transfer to the office of the Dean for Student Life and Activities ("Student Affairs") had been formally approved. Plaintiff's position was retitled "Assistant Director for Auxiliary Services," and he was instructed to report directly to the Director of the University Center.

 25. Dr. Harris testified that food services and ticket sales were transferred to the office of the Dean for Student Affairs based on the recommendation of the university's auditors, Peat, Marwick and Mitchell.

 26. Dr. Harris further testified that, to the best of his knowledge, plaintiff was not demoted as a result of his 1986 transfer to Student Affairs.

 27. The Court finds that although plaintiff's involuntary transfer to Student Affairs had no effect on his HA grade level, it constituted a de facto demotion for the following reasons: First, the transfer substantially diminished plaintiff's responsibilities. Plaintiff, who had previously been responsible for oversight of all of the DAE office functions, was reduced to supervising only two of the functions. Second, plaintiff no longer supervised other employees but was limited to performing "menial" tasks. Third, plaintiff no longer reported directly to the office of the Vice-President for Business and Fiscal Affairs but, rather, to the Director of the Student Center, a lower echelon in the university chain of command. Finally, the Court credits plaintiff's testimony that the transfer separated him from upper levels of management and thereby decreased, if not eliminated, his opportunities for future promotion.

 28. On July 1, 1987, Dr. Harris re-established the position of DAE and appointed Mr. Negron ...


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