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MILBURN v. WEST

June 15, 1994

WILLIAM E. MILBURN, Jr., Plaintiff,
v.
TOGO D. WEST, JR., Secretary of the Army, Defendant. SIDNEY L. WALKER, Plaintiff, v. TOGO D. WEST, JR., Secretary of the Army, Defendant.



The opinion of the court was delivered by: LOUIS F. OBERDORFER

 I. FINDINGS OF FACT

 A. The Washington Aqueduct

 The United States Army Corps of Engineers operates the Washington Aqueduct through the Washington Aqueduct Division of its Baltimore District. Defendant, sued in his official capacity as Secretary of the Army, is the civilian official in charge.

 The Aqueduct, constructed in 1852 by the Corps of Engineers, *fn1" channels water from the Potomac River to reservoirs in the District of Columbia and there treats it for distribution to the public.

 The Aqueduct operates under the direct supervision of a chief and a deputy chief. These positions are held by Pericles Costas and Douglas Pickering. The Division is divided into four branches, one of which is the maintenance branch. Each branch is supervised by a branch chief, who oversees two or three sections, each of which, in turn, is supervised by a section chief or general foreman. Sections are further subdivided into units.

 In 1988, the Aqueduct Division had fifteen supervisory positions at or above the level of section chief. Although about 60% of the overall work force at the Aqueduct was African American, only one of these supervisory positions was held by an African American -- Ira Thompson, the Chief of the Dalecarlia section in the plant operations branch. Milburn Ex. 30.

 In 1988, J. Leonard Ignatowski was chief of the maintenance branch. Bernard White was assistant chief of the branch. Both Ignatowski and White are white.

 The maintenance branch is divided into two sections: the electrical service section and the utility, repair, and installation section (the "utility section").

 The utility section, where the vacancy at issue occurred, includes seven units, each supervised by a unit foreman. Only one other section in the Aqueduct Division contains as many as three units. Milburn ex's 30, 31.

 The majority of employees in the maintenance branch are African American. No African American ever has held the position of branch chief or general foreman in the maintenance branch.

 B. The Maintenance General Foreman Selection

 On October 4, 1988, the Baltimore District issued a vacancy announcement for the position of maintenance general foreman in the utility section of the maintenance branch.

 The vacancy occurred when White was promoted in April 1988 from the position of maintenance general foreman of the utility section to the position of assistant chief of the maintenance branch.

 The vacancy announcement listed three occupations that best reflected the operations of the utility section: pipefitter, WG-4204-10; engineering equipment operator, WG-5716-10; and automotive mechanic, WG-5823-10. Milburn Ex. 1.

 The vacancy announcement listed seven "job evaluation criteria" subject to consideration in making the selection: (1) ability to supervise through subordinate supervisors (hereinafter "second-line supervisory" ability), which was listed as the "screen-out criterion"; (2) knowledge of different, relevant lines of work; (3) ability to work with others; (4) knowledge of materials; (5) ability to plan and organize work; (6) ability to meet deadlines under pressure; and (7) ingenuity (ability to suggest and apply new methods). Milburn Ex. 1.

 Ignatowski, as chief of the maintenance branch, was the selecting official for the vacant position. Ignatowski considered White's input in making the selection.

 In making his selection, Ignatowski chose which of the seven job evaluation criteria listed in the vacancy announcement would form the basis for his decision.

 Among the applicants for the position were the plaintiffs William E. Milburn, Jr. and Sidney L. Walker, both of whom are African American and were employed in the maintenance branch in 1988, and Paul Bryant, who is white and who had been working at the Aqueduct for less than a year in a different branch.

 Milburn, Walker, and Bryant all were listed on the Form DA 2600 as among the "best qualified" candidates for the maintenance general foreman position. Milburn Ex. 2. Accordingly, Ignatowski conducted personal interviews with all three, as well as most others on the list, regarding the vacancy.

 Ignatowski's interview with Milburn lasted about ten minutes. Ignatowski asked few questions; the first involved why Milburn had never chosen to join the military. He asked nothing about Milburn's supervisory experience. Milburn Ex. 81 (Milburn Dec.) at P 11.

 Ignatowski's interview with Walker lasted about five minutes. Ignatowski first asked Walker about Cajun food and football and then asked about Walker's view of the position and his supervisory experience. He did not ask Walker about second-line supervisory experience. Jan. 31, 1994 Trial Tr. at 7-8.

 In addition to his personal interviews with the applicants, Ignatowski relied on his personal knowledge of the applicants in reaching his decision. Ignatowski had firsthand knowledge of the qualifications of Milburn and Walker because they were employed in the maintenance branch. He lacked firsthand knowledge of Bryant's qualifications.

 Ignatowski notified plaintiffs on December 2, 1988 that he had selected Bryant for the position.

 On the selection register reflecting his choice of Bryant, Ignatowski indicated that he had relied on three of the seven job evaluation criteria in making his selection: ability to supervise through subordinate supervisors; ability to work with others; and ability to plan and organize work.

 At trial, Ignatowski and White offered additional reasons for selecting Bryant, including his "breadth of experience," notably in the military; Bryant's potential to contribute to a planned upgrade of the maintenance branch; and minor disagreements in the past between White and Milburn.

 Milburn remains employed today at the Aqueduct Division as foreman of the plumbing and pipefitting unit of the utility section, the same position he held in 1988.

 Walker left the Aqueduct Division in late 1991 to take a position with the Department of the Navy and is now employed with the Department of the Army. There is no showing that either of these U.S. government positions has been less remunerative or attractive than the position of maintenance general foreman at the Aqueduct.

 Bryant remains employed at the Aqueduct as maintenance general foreman of the utility section, the position at issue here.

 C. Pretext in Defendant's Reasons for the Selection of Bryant

 The evidence in the record establishes that it is more likely than not likely that the reasons given by Ignatowski and White for the selection of Bryant constitute a pretext for racial discrimination against plaintiffs.

 1. The Applicants' Qualifications

 Comparison of the qualifications of Milburn, Walker, and Bryant for the position at issue leads to a finding that the reasons Ignatowski gave on the selection register for his selection of Bryant were pretextual.

 At the time of the vacancy announcement, Milburn was foreman (WS-4204-10) of the plumbing and pipefitting unit of the utility section of the maintenance branch. Milburn had interacted with persons from other trades within the maintenance branch. His seven years of experience in the unique working environment of the Aqueduct, first as a pipefitter, then unit leader, and finally unit foreman, made him familiar with its operations and personnel. He reflected this experience on the SF-171 form he submitted with his application. Milburn Ex. 8.

 Prior to Milburn's submission of his application, Ignatowski and White completed and signed a supervisor's rating, on which they rated Milburn in the same seven categories that comprised the job evaluation criteria on the vacancy announcement. In each category, Ignatowski and White rated Milburn's "demonstrated ability" as either "4" ("superior") or "3" ("highly acceptable") out of four possible points, for a total of 23 out of 28 possible points. They rated Milburn's demonstrated ability to supervise through subordinate supervisors and ability to plan and organize work "highly acceptable" and his ability to work with others "superior." Milburn Ex. 8.

 In 1987, Ignatowski and White wrote in an evaluation of Milburn: "For a relatively new foreman, Mr. Milburn has acted as an experienced supervisor with a high level of self-confidence and dedication to his duties." Milburn Ex. 5 at 7-8. In March 1988, Ignatowski wrote in an evaluation that Milburn was "a highly-motivated and dedicated employee" who had "produced work of the highest craftsmanship." Milburn Ex. 6. White wrote that Milburn was "an exceptional employee . . . a hard worker and a dedicated employee . . . ." Milburn Ex. 7. In October 1988, Ignatowski and White completed Milburn's annual performance rating. They indicated that Milburn "exceeded" five listed criteria regarding his performance as a supervisor and "met" the other two. Milburn Ex. 5 at 1.

 At the time of the vacancy announcement, Milburn had received several awards and other recognition for his work in the maintenance branch. These were reflected on his application. Milburn Ex. 8.

 Milburn had supervised the assistant foreman in the plumbing and pipefitting unit since 1986. Two different individuals held that position under Milburn. He had also supervised others among his six fellow unit foremen in the Utility Section whenever the units performed joint work. He had approximately two years of ...


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