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Davis v. Chao

February 20, 2003

EARLINE E. DAVIS, PLAINTIFF,
v.
ELAINE CHAO, SECRETARY, UNITED STATES DEPARTMENT OF LABOR, DEFENDANT.



MEMORANDUM OPINION

Earline E. Davis complains pro se that the Employment and Training Administration (ETA) within the U.S. Department of Labor (DOL) discriminated against her based on her age (60) and race (African-American) and in retaliation for prior discrimination complaints when it failed to promote her to either of two advertised vacancies for which she was admittedly on the "Qualified Eligibles" list. DOL has filed a motion for summary judgment, defending its selections, and Ms. Davis has opposed its motion.

Based upon the arguments of the parties and the entire record, the Court grants DOL's motion for summary judgment with respect to all of Ms. Davis's retaliation claims, and her race and age discrimination claims stemming from DOL's failure to promote her to the position of Contract Specialist, GS-1102-13. In addition, the Court will grant DOL's motion for summary judgment with respect to Ms. Davis's age and race discrimination claims stemming from ETA's selection of Ms. Mingarelli over Ms. Davis for the position of Manpower Development Specialist, GS-142-13. Because genuine issues of material fact still exist regarding DOL's failure to promote Ms. Davis to the Manpower Development Specialist position when Ms. Mingarelli failed to accept the position and DOL cancelled the vacancy notice, the Court will deny DOL's motion for summary judgment with respect to Ms. Davis's race and age discrimination claims stemming from the failure to promote at that time.

BACKGROUND *fn1

Ms. Davis is presently employed as a GS-12 Audit Resolution Specialist at DOL. She has served as an Audit Resolution Specialist for ETA since 1984. She is primarily responsible for providing technical advice and guidance on audit issues relating to DOL's employment and training programs.

During the summer of 2000, ETA advertised two positions for which Ms. Davis applied. The first such position was for a GS-13 Contract Specialist located in the Office of Grants and Contract Management and involved advising the Job Corps Architecture/Engineering and Construction unit. This position required knowledge of procurement practices and principles of acquisition planning. The second position was for a GS-13 Manpower Development Specialist to provide technical assistance to local youth programs that provide service to youth service providers.

The Selecting Official for the Contract Specialist position was John Steenbergen. Two individuals were listed on the Certificate of Eligibles, Ms. Davis and Marissa Dela Cerna, both of whom were interviewed.*fn2 Mr. Steenbergen selected Ms. Dela Cerna because she had more recent experience in negotiating and awarding architectural engineering and construction contracts. At the time of the selection, Ms. Dela Cerna was holding a GS-12 Step 4 position as a Senior Contract Specialist responsible for the procurement of major and complex architectural engineering services and construction services for twelve Job Corps Centers nationwide. In contrast, Ms. Davis's experience was primarily in audit resolution.

The Selecting Officer for the GS-13 Manpower Development Specialist position was Karen Clark. Two individuals were listed on the Certificate of Eligibles, Ms. Davis and Lynne Mingarelli, both of whom were interviewed.*fn3 Ms. Clark selected Ms. Mingarelli for the position because she had direct experience in overseeing both local and state grantees in the area of youth services, including providing technical assistance to state and local grantees. This was the exact kind of experience for which Ms. Clark was looking. At the time of her selection, Ms. Mingarelli was a GS-12 Manpower Analyst in the National School-to-Work Office of the Departments of Education and Labor. In contrast, Ms. Davis had no experience in providing advice on programmatic youth matters, although she had experience with the financial side of such programs.

Ms. Mingarelli declined the job offer. Ms. Clark thereafter cancelled the vacancy announcement. She did not offer the job to Ms. Davis although Ms. Davis had satisfied the requirements for inclusion on the Qualified Eligibles list.

PRIOR EEO ACTIVITY

Ms. Davis was one of the lead class members in a 1983 EEO complaint against ETA in which African American employees of the agency in its National Office advanced claims of race discrimination with respect to performance evaluation ratings, performance awards, promotions, rehiring and re-promotion. That matter was the subject of a formal Settlement Agreement in 1994. Among other provisions, it included $2.7 million in pay adjustments for class members and $1 million in a special training fund. Under the Settlement Agreement, "Claimants who participate in this education and training fund and complete their development program will receive special consideration for promotion." Plaintiff's Opposition to Defendant's Motion for Summary Judgment, Exh. C at 2. Ms. Davis participated in the fund and completed a development program.

The Settlement Agreement had a definite life span. It specified that "This action shall be deemed finally dismissed with prejudice, and DOL shall have no further obligations whatsoever under this Agreement, upon the expiration of the term of the Agreement." Id. at 8. The term of the Settlement Agreement was five years. Therefore, it expired in 1999.

Mr. Steenbergen admittedly knew of Ms. Davis's prior EEO activity. Ms. Clark was not at the DOL at the time of the 1983 complaint or the 1994 Settlement Agreement and states that she had no prior knowledge of Ms. Davis's EEO activity until the instant charge was filed.

Soon after the non-selections, Ms. Davis filed charges under Title VII, as amended, 42 U.S.C. ยง2000e et seq. She has exhausted her administrative ...


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