The opinion of the court was delivered by: LAMBERTH
The court today issues this Memorandum Opinion II and accompanying order covering non-jury issues tried before the court. Separately issued this date is Order and Memorandum Opinion I, which sets the background of this litigation and addresses several motions by defendant Washington Metropolitan Area Transit Authority (WMATA), including its motion for judgment as a matter of law or, in the alternative, for a new trial.
Because the unlawful acts alleged in this case predate the Civil Rights Act of 1991, the court rather than the jury must decide Jones' Title VII claims. Landgraf v. USI Film Prods., 511 U.S. 244, 114 S. Ct. 1483, 128 L. Ed. 2d 229 (1994). The court must also decide issues of relief under both Title VII and the Age Discrimination in Employment Act (ADEA), including attorneys' fees, the amount of back pay owed Jones, and the amount of liquidated damages due her under the ADEA given the jury's determination that the ADEA violations were willful, 29 U.S.C. § 626(b). Finally, the court must decide the nature of any injunctive relief, such as promotion and reinstatement, as well as Jones' request that WMATA and its assistant general manager in charge of rail, Fady Bassily, be enjoined from further retaliation against her or other WMATA employees who engage in protected activity.
Plaintiff Judy Jones asks that the court find that WMATA retaliated against her in violation of Title VII when she was denied promotion to TS-4 in 1987 and 1988, and when she was terminated in March 1991, and that WMATA subjected her to sex discrimination in violation of Title VII when she was rejected for promotion to TS-5 in 1987. Based upon the following findings of fact and conclusions of law, the court holds that WMATA violated Title VII by denying Jones' promotion to TS-4 in 1987 and again in 1988, and by terminating Jones in 1991. The court rejects Jones' claims in respect of the TS-5 promotion in 1987.
I. FINDINGS OF FACT AND CONCLUSIONS OF LAW
1. WMATA is an employer as defined by both the ADEA, 29 U.S.C. §§ 621 et seq., and Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. §§ 2000e et seq.
2. Title VII makes it unlawful for an employer to discriminate against one of its employees on the basis of sex or to retaliate against one of its employees for complaining about sex discrimination or for pursuing a claim of sex discrimination. Under Title VII, such complaints are considered protected activity. 42 U.S.C. § 2000e-3(a).
3. The burden of establishing a prima facie case of sex discrimination in violation of Title VII can be satisfied by showing that (1) the plaintiff applied for the job, (2) she was qualified for it, (3) she was not selected, and (4) a man was. See McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802, 36 L. Ed. 2d 668, 93 S. Ct. 1817 (1973); Texas Department of Community Affairs v. Burdine, 450 U.S. 248, 252-53, 67 L. Ed. 2d 207, 101 S. Ct. 1089 (1981).
4. The burden of establishing a prima facie case of retaliation in violation of Title VII can be satisfied by showing that (1) the plaintiff engaged in activity protected by the Act, (2) the plaintiff was subject to an adverse employment action, and (3) there exists a causal connection between the two. McKenna v. Weinberger, 234 U.S. App. D.C. 297, 729 F.2d 783, 790 (D.C. Cir. 1984). The third element may be satisfied by showing that the employer was aware of the protected expressions at the time of the adverse employment action, and that the adverse action took place shortly after the protected activity, Mitchell v. Baldrige, 245 U.S. App. D.C. 60, 759 F.2d 80, 86 (D.C. Cir. 1985).
5. If the plaintiff establishes a prima facie case, the burden shifts to the defendant to articulate a legitimate, non-discriminatory explanation for its actions. Burdine, 450 U.S. at 253.
6. The burden then passes back to the plaintiff to prove, by a preponderance of the evidence, that sex discrimination or unlawful retaliation more likely than not motivated the employer's actions. Id. Plaintiff need not present direct evidence. If she demonstrates that the employer's articulated explanations are unworthy of credence, the finder of fact may, but is not required to, infer that the reason is pretextual and that sex discrimination or retaliation is the real reason. St. Mary's Honor Center v. Hicks, 509 U.S. 502, 511, 125 L. Ed. 2d 407, 113 S. Ct. 2742 (1993).
7. Where there is direct evidence of sex discrimination or retaliation, the McDonnell Douglas/Burdine circumstantial proof scheme, including the prima facie analysis set forth above, need not be applied, and the issue narrows to whether plaintiff has proven by a preponderance of the evidence that retaliation more likely than not motivated the adverse action. Trans World Airlines, Inc. v. Thurston, 469 U.S. 111, 121, 83 L. Ed. 2d 523, 105 S. Ct. 613 (1985).
8. Jones had served as a first line supervisor (TS-3) in the Rail Department since 1984, having begun her career at WMATA as a bus driver in 1974 and having later served as a Train Operator. At the time of trial, she was 69. Jones has openly protested what she perceived as discrimination in the Rail department, using both formal and informal means to present her views.
9. Jones engaged in protected activity under Title VII by protesting sex and race discrimination on five separate occasions: (1) when she and four other women sent a letter to Fady Bassily in 1985 protesting discrimination, (2) when she filed an earlier Title VII lawsuit against WMATA that settled in February 1987, (3) when she filed a charge with the Equal Employment Opportunity Commission (EEOC) that is the basis for this suit in September 1987, (4) when she filed this lawsuit in March 1989, and (5) when she retained new counsel to prosecute this suit in February 1991.
10. In assessing Jones' claims, the court relies in part upon "third party" evidence of retaliation at WMATA. In this regard, the court credits the testimony of Avon Mackel, Joan Lewis, and Glennard Hodges.
11. Avon Mackel is a senior manager who has worked at WMATA for 10 years. In 1990, following a reorganization, Mackel served in the Rail Department and filed a charge of discrimination with the EEOC.
12. Bassily's response was to inform Mackel that he did not like his managers filing discrimination complaints. Bassily said that a reduction-in-force was on the horizon, and he made it clear that if Mackel pressed his EEO complaint he would be RIFfed. Mackel refused to drop his complaint, and two months later he was RIFfed.
13. Joan Lewis, a former EEO officer at WMATA, confirmed that Bassily resented discrimination complaints, often reacting angrily when one was filed. She also testified that Claude Swanson, WMATA's Director of Civil Rights, ordered her to report all complaints of discrimination - informal as well as formal - to Carmen Thorne, one of Bassily's assistants. No department other than Rail had ever sought such information and its disclosure could compromise the anonymity of some informal complaints. Lewis declined to honor Swanson's directive but later learned that someone else in Civil Rights was providing the information to the Rail department.
14. Glennard Hodges was an Assistant Superintendent, TS-7, when he helped form an association of rail supervisors in 1992. He was later demoted to TS-3. Hodges testified that, in his view, Bassily retaliated against Judy Jones when he fired her in 1991.
15. Taken as a whole, the testimony of Mackel, Lewis, and Hodges suggests that Fady Bassily engaged in retaliation against those who complained of discrimination in the Rail department. It is against this backdrop of retaliation that Judy Jones' claims must be assessed.
16. According to WMATA official Mark Miller, Judy Jones was one of the better applicants for the first level position of Rail Supervisor, TS-3, when she secured that job in 1984. She has never been promoted above that level.
17. When applying for promotion, Jones received high marks on criteria such as job knowledge, communications skills, education and training; but she was denied promotions, allegedly because of poor ratings on other criteria - most particularly, attitude. Nonetheless, referring to the 1986-87 time frame, Jones' supervisor said that she "accepts assignments with a positive attitude" and generally "suggests innovative solutions to work problems."
19. Upon occasion, supervisors prepare special ratings to assist in making promotional decisions. In 1988 - when Jones was denied a TS-4 position - she received a higher special supervisory rating than several of the candidates who were chosen. And in 1989, Jones' supervisor stated:
Jones has no problems with her leadership abilities. She knows what has to be accomplished during her tour of duty and uses every means at her disposal to do so.
Supervisor Jones does show sound judgment .... She has ... never had a problem which she could not handle herself. She is self sufficient.
Her knowledge of rules and regulations is very thorough and she can produce quality ...