The opinion of the court was delivered by: John M. Facciola, United States Magistrate Judge
A jury returned a verdict in favor of the plaintiffs, *fn1 who complained that their not being selected for the position of Physical Security Specialist was the result of racial discrimination. This case is therefore now in the remedy phase with the court obliged to determine what back pay they are entitled to and whether they should now receive the Physical Security Specialist positions that were given to others. *fn2
The government, however, seeking to deny plaintiffs any remedy whatsoever, renews an argument it made at trial. It had pressed me unsuccessfully to instruct the jury that they could not return a verdict for plaintiffs if they found that plaintiffs would not have gotten the jobs even if the jury found that their not getting the jobs was the product of racial discrimination in the first place. To understand why I rejected that argument at trial one has to understand the process that led to the incumbents' selection and the plaintiffs' rejection.
Plaintiff Earl Lomax, Jr., ("Lomax") had worked for the Federal Protective Service as a uniformed police officer for 29 years when he applied for the position of Physical Security Specialist. Tr. *fn3 at 35. Plaintiff Reginald Allen ("Allen") had been with that Service since 1996 when he applied for the same position. Tr. at 172. From 1991 to 1996, Allen had served as a uniformed police officer in the Defense Protective Agency, protecting the Pentagon. Tr. at 174.
The Physical Security Branch tries to improve all aspects of building security in federal buildings by focusing on, for example, alarms or surveillance equipment. The Enforcement Branch, on the other hand, engages in the more traditional policing functions of patrolling federal buildings and responding to alarms. The plaintiffs were attracted to the possibility of advancement in the Physical Security Branch. As members of the Enforcement Branch, their career path ended at a GS-9 while as members of the Physical Branch they could advance to GS-12. Tr. at 45. Indeed, when plaintiffs testified at trial in 2001, the incumbents, who started as GS-7's in the Physical Security Branch had already advanced to GS-12. Tr. at 121.
The process culminating in the incumbents' selection began with the publication of a vacancy announcement. Plaintiffs submitted the required documents and a personnel specialist, Mary Jo Clark, then matched these submissions against a job analysis and crediting plan created by the Federal Protective Service. Clark testified that this plan "would tell me exactly what knowledge, skills and abilities a person would have to have in order to be eligible for this position." Tr. II at 25.
In this instance, the knowledge, skills, and abilities for the Physical Security Specialist position were:
1. Knowledge of physical security principles;
2. Ability to gather data and draw conclusions;
3. Ability to establish priorities; and
4. Ability to communicate orally and in writing Tr. at 51.
Clark examined the applicants' submission to compare what appeared in those submissions to these four criteria. If there was, in Clark's view, a match between something in the applicant's submission and any of the criteria, the candidate received credit; if there was not, Clark disregarded it. Tr. II at 41. She specifically testified that she disregarded the applicants' years of experience as a police officer. Tr. II at 41. As a result, there was a remarkable leveling of the applicants' credentials for the new job. Of the thirteen who applied, Clark found nine who were qualified for the position. She was obliged to rate them on a scale of 1 through 4 and all nine got the same grade, 3. The net effect of this was that plaintiffs' years on the job gained them nothing in Clark's eyes. Indeed, Lomax, with 29 years of experience, got the same grade as one incumbent who was a trainee when she applied for the job. Tr. at 86.
Clark sent the nine names on to John Bates ("Bates"), then Director of the Federal Protective Service, who could have chosen anyone on the list. Tr. II at 136. Bates, however, assigned his assistant to convene a three person panel to interview the nine applicants. The panel convened, interviewed the applicants, and graded them solely on the basis of their answers to four interview questions. *fn4
The interview process yielded cumulative scores for each applicant that were the sum of the scores given each applicant by each panel member. The job went to the highest scorer, an African-American named Spencer. Bates, however, wanted to create additional positions in the Physical Securities Branch and, therefore, his assistant created two more positions. Applicable regulations permitted Bates to fill those positions with names from the nine-person list, provided he acted within 90 days of his selection of Spencer. Tr. II at 135-137. Bates then chose the next two highest scorers, Dunham and Fitzgerald, whom I have called the incumbents, for the two new positions. As I have noted, the incumbents, who are white, were remarkably junior to plaintiffs. Dunham was a trainee and Fitzgerald had one year in grade when selected; Lomax had 29 years experience with the agency when Bates selected the incumbents. Plaintiffs fared poorly in the interview process that became, by default, the sole criterion for selection because Bates testified that he did not make an independent review of the documents the applicants had submitted but simply went down the nine person list, having totaled the scores given him by the interview panel. Tr. II at 136. On that list, plaintiff Allen was last and plaintiff Lomax was next to last.
At the conclusion of the trial, the agency tendered an instruction that would have had me tell the jury that it could not return a verdict for plaintiffs even if they found that their non-selection was the product of racial discrimination, if they also found that they would not have gotten the jobs in any event. Pointing to the list, the agency insisted that even if the incumbents, Dunham and Fitzgerald did not get the jobs, there were still five candidates who scored higher than Lomax and Allen who would have gotten the jobs even if the incumbents had not.
I rejected that argument, concluding that if the jury were to find that the process that resulted in the selection of the incumbents was tainted by a discriminatory animus the results of that process could not justify denying plaintiffs relief. I stated:
How can a process which a jury finds explicitly to discriminatory and unfair be used to justify the result that they wouldn't have gotten the jobs anyway because the process ...