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MILLINER v. DIST. OF COLUMBIA

July 8, 1996

DONNA MILLINER, Plaintiff,
v.
DISTRICT OF COLUMBIA, Defendant.



The opinion of the court was delivered by: HARRIS

 Plaintiff, a DS-6 employee of the District of Columbia government, filed this discrimination action in 1992. She alleged in her complaint that the District of Columbia and her agency-employer, the Department of Human Services Alcohol and Drug Abuse Services Administration ("ADASA") (now known as the Addiction Prevention and Recovery Administration), discriminated against her in violation of Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq. (1994), and in violation of the D.C. Human Rights Act, D.C. Code Ann. § 1-2501 et seq. (1991 Repl. & Supp. 1995), when they failed to promote her to a DS-7 (or "Grade 7") position upon her return from maternity leave. Plaintiff also alleged that defendants retaliated against her after she filed an EEOC charge, also in violation of Title VII.

 On May 17, 1993, this Court dismissed ADASA as a defendant, because ADASA, as an agency of the District of Columbia, is non sui juris. See Hinton v. District of Columbia Metropolitan Police Dep't, 726 F. Supp. 875 (D.D.C. 1989). Milliner v. District of Columbia, Civ. No. 92-187 (D.D.C. May 17, 1993). The Court also dismissed plaintiff's D.C. Human Rights Act claim against the District of Columbia; plaintiff, as an employee of the District, cannot bring a private cause of action against the District pursuant to the D.C. Human Rights Act. Id. (citing Dougherty v. Barry, 604 F. Supp. 1424, 1442 (D.D.C. 1985)).

 On December 12, 1994, this Court denied plaintiff's request for a jury trial and dismissed plaintiff's claims for compensatory damages. The Court found that the recent decision of the United States Supreme Court in Landgraf v. USI Film Products, 511 U.S. 244, 128 L. Ed. 2d 229, 114 S. Ct. 1483 (1994), governed plaintiff's case and precluded allowing a jury trial and compensatory damages. Milliner, Civ. No. 92-187 (D.D.C. December 12, 1994). On August 10 and 11, 1995, this Court conducted a bench trial of plaintiff's Title VII claim against the District of Columbia. The parties submitted proposed findings of fact and conclusions of law in December 1995 and January 1996.

 This Opinion sets forth the Court's findings of fact and conclusions of law, as required by Fed. R. Civ. P. 52(a). Based on the credible evidence submitted at trial, the Court finds that the District of Columbia did not discriminate against plaintiff because of her pregnancy, nor did it retaliate against her in any way following plaintiff's filing of an EEOC charge.

 Findings of Fact

 Plaintiff's immediate supervisor at ADASA was Linda Holifield, who joined ADASA in December 1987. Although plaintiff and Holifield initially did not get along well, they apparently resolved their differences in early 1988. Plaintiff testified at trial that Holifield gave her an "excellent" evaluation for the time period covering April 1988 through March 1989, but neither plaintiff nor defendant produced a copy of that evaluation at trial.

 In late 1988 or early 1989, plaintiff and Holifield discussed the possibility of a promotion for plaintiff, from the DS-6 position she currently occupied to that of a DS-7. Holifield encouraged plaintiff to continue performing well at her job, and if plaintiff continued to show interest and progress, Holifield would assist her in applying for the promotion. In late August and early September 1989, Holifield submitted an "Op-8" form and a "Form 52" request for personnel action to the District of Columbia Office of Personnel ("Office of Personnel"), requesting that plaintiff be promoted to a DS-7 Program Assistant position within the agency. The Program Assistant position apparently did not exist prior to Holifield's request; in effect, what Holifield attempted to do was create a new Program Assistant position using plaintiff's Clerical Assistant position number and duty description.

 The Office of Personnel rejected the proposed promotion several times, for several reasons. First, the documents submitted by ADASA to the Office of Personnel were not approved or signed by the required agency officials. Second, the Office of Personnel rejected the proposed promotion and change in grade level because (1) the position description submitted was incorrect; (2) the Form 52 submitted was incorrect; (3) the position numbers were the same for plaintiff's current Clerical Assistant position and for the Program Assistant job being sought for her; and (4) the Program Assistant position Holifield was trying to create for plaintiff overlapped substantially with the duties of other employees.

 Some time after August 1989, the Office of Personnel also instituted a hiring freeze, and for at least some period of time, also had no budget from which to hire new employees (or promote current employees). In addition, Holifield testified that plaintiff's performance took a turn for the worse some time prior to her departure on maternity leave. The Court fully credits Holifield's testimony on this point. *fn1"

 In addition, plaintiff testified that she knew that, under the relevant District of Columbia regulations, she would have to compete for any open Program Assistant position. While Holifield attempted in 1989 to create such a position for plaintiff, plaintiff submitted no evidence that such a position was indeed created, budgeted for, approved by the Office of Personnel, and opened to competition. Plaintiff also submitted no evidence that, had a Grade 7 position been available, she would have been the most qualified applicant for the position. Plaintiff also testified that she had not filled out the required Form 171 which accompanied any application for an open position. Nor had plaintiff requested a "desk audit" of her current position, which would have allowed the Office of Personnel to determine whether her position supported a change in job classification to Grade 7.

 In sum: in 1989, since Holifield was pleased with plaintiff's improvement in job performance, Holifield attempted to lay the groundwork for a promotion for plaintiff from a Clerical Assistant position to that of a Program Assistant by creating a new position. The Office of Personnel rebuffed Holifield's initial efforts several times, and, when a hiring freeze occurred and when plaintiff's job performance again declined, Holifield logically decided not to continue to attempt to create a Grade 7 position for plaintiff. This decision was apparently made sometime after plaintiff went on maternity leave, but was motivated by factors independent of her taking maternity leave. Plaintiff, for her part, did nothing to pursue a promotion through the means available to her -- i.e., requesting a desk audit of her position or taking steps to apply for an open, budgeted Grade 7 position within ADASA or elsewhere within the D.C. government.

 In late November or early December 1989, plaintiff informed Holifield that she was pregnant. On May 2, 1990, plaintiff requested and received permission to take three months of maternity leave, commencing June 4, 1990, and concluding September 4, 1990. Plaintiff actually left ADASA on May 18, 1990, not June 4, after she began suffering dizziness, shortness of breath, and other medical problems associated with the pregnancy. Plaintiff's third child was born on June 30, 1990. Following the birth of the child, plaintiff suffered from a postpartum bladder infection and had a tubal ligation.

 In early August 1990, plaintiff came in to the agency's offices to type up a document. She maintains that she spoke with Holifield on that occasion about an extension of her leave until October 1, rather than September 4, and that Holifield "indicated that she was in agreement." Holifield testified that plaintiff did not, officially or otherwise, "request" an extension, nor did Holifield "indicate[] her agreement." Rather, Holifield testified that as plaintiff was leaving the office after her August visit, plaintiff said, "I will see you on October 1st." Holifield told plaintiff that she had her dates wrong, that the agency was anxious to have her back at work, and that she would see plaintiff after Labor Day. Plaintiff never submitted a written request to Holifield for a further extension of her leave.

 Plaintiff did not return to work on September 4, as previously agreed. On September 10, plaintiff called Holifield to "remind" her of their "agreement." Although plaintiff testified that Holifield said "okay" when plaintiff reminded her of their purportedly agreed-upon extension, Holifield testified that she told plaintiff that she had been absent for longer than she had leave to be absent, and that since she had made no formal written request for an extension of her leave, her current leave status was unapproved, and that she was absent without leave ("AWOL"). Holifield testified that she asked plaintiff why she needed more time -- for ...


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