Plaintiffs both worked in the branch and the section in which the vacancy occurred, giving them experience and insights regarding the people, tasks, and materials for which the maintenance general foreman would be responsible. In Milburn's case, this advantage had the added heft of supervisory experience.
Evidence of plaintiffs' qualifications for the position demonstrates that defendant's stated reasons for promoting Bryant were a pretext for racial discrimination. The record contains somewhat more evidence of Milburn's qualifications than of Bryant's. However, "the issue in a case of an allegedly discriminatory failure to hire or promote is not the objective superiority or inferiority of the plaintiff's qualifications, but rather whether the defendant's selection criteria -- be they wise or foolish -- are nondiscriminatory." Mitchell v. Baldrige, 245 U.S. App. D.C. 60, 759 F.2d 80, 85 n.3 (D.C. Cir. 1985), citing Burdine, 450 U.S. at 258-59. Thus, the fact that evidence of Milburn's qualifications contributes more than does evidence of Walker's to a conclusion that Bryant was promoted for racially discriminatory reasons is irrelevant to the ultimate issue of discrimination. The sum of the evidence supports the conclusion that both plaintiffs were victims of racial discrimination veiled by pretextual explanations.
The inference of discrimination gains force because of the evidence of a discriminatory environment at the Aqueduct. Cf. Parker v. Secretary, United States Department of Housing and Urban Development, 282 U.S. App. D.C. 17, 891 F.2d 316, 322 (D.C. Cir. 1989). Most prominently, Aqueduct Division officials appear not to honor the directives of the Baltimore District's affirmative action program. The District's equal employment opportunity officer appears to rubber-stamp the Aqueduct Division's promotion decisions, having never challenged one in twenty years on the job. The Aqueduct Division has had a negligible number of African American supervisors, including only one upper-level supervisor, despite its high percentage of African American employees. Minority promotion goals go unmet. Officials appear to avoid the dictates of the affirmative action policy by restrictively interpreting the requirement of rough equality for bringing the policy into play. In addition, plaintiffs' expert testified that African Americans receive a disproportionately small number of "noncompetitive" promotions at the Aqueduct. Defendant's failure to comply with its own equal employment obligations cannot form a basis for Title VII liability. E.g., Liao v. TVA, 867 F.2d 1366, 1369 (11th Cir. 1989). However, noncompliance can serve as evidence of defendant's intent. E.g., Mozee v. American Commercial Marine Serv. Co., 940 F.2d 1036, 1051 (7th Cir. 1991). Defendant's failure to comply with its own affirmative action program supports an inference of discriminatory intent.
As discussed above, plaintiffs have made out a successful prima facie case of racial discrimination. Based on the deficiencies in the legitimate, nondiscriminatory reasons offered by defendant to justify its nonselection of plaintiffs, as enhanced by the other evidence of pretext in the record and by the negative climate of race relations at the Aqueduct, I conclude that defendant's proffered reasons constitute a pretext for racial discrimination. Accordingly, I conclude that defendant intentionally discriminated against plaintiffs in selecting Paul Bryant for the position of maintenance general foreman in December 1988, in violation of Title VII of the Civil Rights Act of 1964.
B. Milburn's Retaliation Claims
In order to make out a prima facie case of retaliation under Title VII, a plaintiff must show that (1) he engaged in protected activity; (2) the defendant took an adverse personnel action against him; and (3) the adverse action was causally related to his exercise of protected rights. Berger v. Iron Workers Reinforced Rodmen Local 201, 269 U.S. App. D.C. 67, 843 F.2d 1395, 1423 (D.C. Cir. 1988). If plaintiff makes out a prima facie case, defendant may introduce evidence of legitimate, nonretaliatory reasons for the challenged conduct, and plaintiff may then attempt to show that defendant's proffered reasons are pretextual. Id.
Plaintiff Milburn claims retaliation based on Bryant's Memorandum for the Record regarding the August 1990 lime machine incident and on his 1990 civilian performance rating. Milburn has failed to make out a prima facie case as to either claim. Milburn engaged in protected activity by filing his complaints before the EEOC and his lawsuit regarding the maintenance general foreman selection. The record contains no evidence that either of defendant's allegedly retaliatory acts was causally linked to Milburn's protected activity. The only evidence of causation plaintiff purports to offer is the fact that the alleged retaliation occurred after Milburn engaged in some of his protected activity. Mere coincidence in time does not establish causation. E.g., Collins v. Illinois, 830 F.2d 692, 704 (7th Cir. 1987).
In addition, Milburn has failed to show that the acts complained of were ultimately adverse to him. Bryant's Memorandum resulted in no disciplinary action or other demonstrably adverse employment consequence. The fact that Milburn's 1990 performance rating was not higher than it was may or may not have diminished Milburn's performance bonus in 1991, depending on availability of funds and the discretion of Milburn's supervisor. By the same token, the fact that the rating was not lower may or may not have increased Milburn's bonus. Milburn's 1990 performance rating was roughly consistent with his 1988, 1989, and 1991 ratings. Marginal distinctions with uncertain consequences are not "adverse action" for the purposes of Title VII. See, e.g., Pinar v. Dole, 747 F.2d 899, 912 (4th Cir. 1984), cert. denied, 471 U.S. 1016, 85 L. Ed. 2d 301, 105 S. Ct. 2019 (1985).
C. The Remedy
Title VII confers broad power to grant appropriate relief, "which may include, but is not limited to, reinstatement or hiring of employees, with or without back pay . . . or any other equitable relief as the court deems appropriate." 42 U.S.C. §§ 2000e-5(g); see also 42 U.S.C. 2000e-16(d). The scope of possible relief "is determined by the purposes of the Act." International Brotherhood of Teamsters v. United States, 431 U.S. 324, 364, 52 L. Ed. 2d 396, 97 S. Ct. 1843 (1977). One such purpose is "to make persons whole for injuries suffered on account of unlawful employment discrimination." Albemarle Paper Co. v. Moody, 422 U.S. 405, 418, 45 L. Ed. 2d 280, 95 S. Ct. 2362 (1975). The Court has "not merely the power but the duty to render a decree which will so far as possible eliminate the discriminatory effects of the past as well as bar like discrimination in the future." Id. at 421.
Compensatory damages were not available in Title VII actions prior to the adoption of the 1991 Civil Rights Act's amendments to the statute. E.g., Boddy v. Dean, 821 F.2d 346, 352 (6th Cir. 1987). Section 102 of that Act provides that a Title VII plaintiff "may recover compensatory and punitive damages . . . from the respondent." Pub. L. 102-166, 105 Stat. 1071. The Supreme Court recently determined that section 102 does not apply retroactively to cases, such as these, that were pending at the time the amendments became law. Landgraf v. USI Film Products, 128 L. Ed. 2d 229, 114 S. Ct. 1483 (1994). Therefore, compensatory damages are not a remedial option here.
Absent the possibility of a damage remedy, the most appropriate relief for a plaintiff in the circumstances of this case is backpay for the difference between the plaintiff's compensation in his actual positions at the Aqueduct and the compensation he would have received had he been promoted to the position of maintenance general foreman, together with a variation on the Title VII "reinstatement" remedy. See 42 U.S.C. § 2000e-5(g). Backpay usually is a component of appropriate relief in a Title VII case involving a failure to hire or promote. Albemarle Paper, 422 U.S. at 415-16. The functional equivalent of reinstatement in these circumstances is to place the plaintiff in the position -- maintenance general foreman of the utility section -- that he was unlawfully denied.
This approach presents two obvious, but surmountable, problems. First, the maintenance general foreman position at issue is currently occupied by Paul Bryant. Bryant bears no responsibility for the promotion decision from which he benefited at plaintiffs' expense. The Court of Appeals for this Circuit has determined that, in providing for a reinstatement remedy in Title VII, "there is no evidence that Congress intended to exclude bumping [of employees hired or promoted in violation of the statute] from the district court's arsenal of available alternatives." Lander v. Lujan, 281 U.S. App. D.C. 140, 888 F.2d 153, 156 (D.C. Cir. 1989). The Lander Court approved even the displacement of innocent employees, denying that "the innocent beneficiary has a superior equitable claim to the job vis-a-vis the victim of discrimination." Id. at 157. In this case, however, the difficult balancing of equities required by the bumping remedy need not be undertaken. Aqueduct Chief Costas has testified to his authority to create new units and name supervisors for those units. Bryant currently oversees seven units, significantly more than Chirichella -- the other section chief in the maintenance branch -- or any other section chief at the Aqueduct. Therefore, to effectuate Title VII's purpose of making plaintiffs whole, defendant will be directed to divide the utility section into two sections, one with four units and one with three, creating a new maintenance general foreman position to supervise the new section.
The second remedial problem is that there are two prevailing plaintiffs in this case, both of whom were wrongfully denied the same promotion. Obviously, had defendant filled the position in a lawful manner, only one of the plaintiffs could have, and would have, received the promotion. The EEOC dealt with a similar situation by remanding the case to the defendant agency for a choice between the two plaintiffs, a choice the Court of Appeals for the Fourth Circuit eventually affirmed. See Pollard v. Grinstead, 741 F.2d 73, 75 (4th Cir. 1984). In this case, where the record contains voluminous evidence of the candidates' qualifications, including the opportunity to observe both men during extensive live testimony, a judicial determination is possible and preferable.
Based on all the facts in evidence, I conclude that Milburn was significantly more qualified to be maintenance general foreman than was Walker. Milburn had more experience at the Aqueduct in a position of greater authority, and his application reflected substantial awards and commendations from his superiors. In addition, Milburn remains employed at the Aqueduct in the position he held at the time of the events at issue. The weight of the evidence supports the determination that Milburn is entitled to relief in the form of backpay and promotion. In the absence of discrimination, Milburn, and not Walker, would have been promoted. In light of Milburn's superior qualifications, Walker, who left the Aqueduct in 1991, has failed to prove his entitlement either to a promotion or to backpay. Congress has provided no damage remedy for discrimination committed before 1991. See Landgraf, supra. Accordingly, the accompanying Order dismisses Walker's Complaint for failure to prove a claim on which he is entitled to relief.
Dated: June 15, 1994
Louis F. Oberdorfer
UNITED STATES DISTRICT JUDGE
For the reasons stated in the accompanying Memorandum, it is this 15th day of June, 1994, hereby
ORDERED: that judgment should be, and is hereby, entered for plaintiff Milburn in Case No. 90-1947; and it is further
DECLARED AND ORDERED: that, while defendant has discriminated against Walker, his complaint in Case No. 90-2443 should be, and is hereby, DISMISSED for failure to prove a claim on which relief can be granted; and it is further
ORDERED: that judgment should be, and is hereby, entered for defendant in Case No. 91-2216 and in Case No. 92-0207; and it is further
ORDERED: that defendant shall, as soon as practicable, divide the current utility, repair, and installation section of the maintenance branch in the Washington Aqueduct Division into two sections of four and three units and shall install plaintiff Milburn in the position of maintenance general foreman for one of those sections; and it is further
ORDERED: that defendant shall pay to plaintiff Milburn backpay in the amount of the difference between the compensation paid to him and the compensation he would have earned as maintenance general foreman of the utility, repair, and installation section between the date that Paul Bryant became maintenance general foreman and the date Milburn is promoted to the new maintenance general foreman position.
Louis F. Oberdorfer
UNITED STATES DISTRICT JUDGE