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September 4, 2003


The opinion of the court was delivered by: John Facciola, Magistrate Judge


In this opinion, I resolve and deny Defendant's Renewed Motion for Judgment as a Matter of Law, Motion for New Trial and Motion to Alter or Amend Judgment.

The defendant contends that plaintiffs' discrimination case should not have gone to the jury and that the Court made evidentiary rulings that justify setting aside the verdict.


In an earlier opinion,*fn1 I reviewed at length how plaintiffs showed a remarkable discrepancy between their experience, documented capabilities, supervisory appraisals, and the decision made to not select them.

Plaintiffs' Evidence

First, the personnel specialist who rated the applications of the candidates for the position disregarded plaintiffs' experience as police officers. Instead, she testified that, because the position being filled was a Grade 7, at the trainee level, she determined that the amount of prior experience was irrelevant. Transcript ("Tr.") II at 43. In this sense, "all of their [the applicants'] [ Page 2]

backgrounds were the same." Id. Hence, as I pointed out in my earlier opinion:

As a result there was a remarkable leveling of the applicants' credentials for the new job. Of the thirteen who applied, Clark [the personnel specialist] 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, [plaintiff] Lomax, with 29 years of experience, got the same grade as one incumbent who was a trainee when she applied for the job.*fn2
Allen, 215 F. Supp.2d at 186.

Second, plaintiffs' evidence, if credited by the jury, established deviations from sources that were supposed to control the selection made. First, the vacancy announcement indicated that the applicant should supply with his application a certain form (GSA form 3413), a "Supervisory Appraisal of Demonstrated Performance." Tr. I at 47. A supervisor was to rate the applicant's demonstrated performance or potential to meet the four quality ranking factors that would be used in assessing the applicant's qualifications. Tr. I at 48-49. The four factors were:

1. Knowledge of physical security principles

2. Ability to gather data and draw conclusions

3. Ability to establish priorities

4. Ability to communicate orally and in writing

Plaintiffs submitted the form from their supervisors. Lomax's supervisor gave him a four on each factor, a perfect score. Tr. I at 54. Allen's supervisor gave him a 15 out of 16. Tr. I at 178. One of the incumbents,*fn3 however, did not even submit the form and the other got a score [ Page 3]

that was lower than plaintiffs, but was chosen nevertheless. Tr. I at 80, 83.

Third, the applicable 1997 merit selection plan required that the selection be on the basis of merit, fitness, and qualifications, and premised "solely on job related criteria." Tr. I at 118. The four interview questions were:

1. Why do you want this job and why should you be chosen?
2. What is the most difficult decision you ever made that turned out wrong and what did you do about it?
3. What are your strengths and weaknesses?
4. Who in your life has impressed you the most and why?
Tr. I at 183-86.

Since all the applicants entered the interview process with the same score of 3, as an assessment of their qualifications, achievements, and backgrounds, the interview process became the exclusive means of rating the applicants. The members of the rating panel so testified, indicating either that they did not even look at the applicants' applications or, if one of them did, they all nevertheless based their rating solely on how the applicants responded to the four questions. Tr. II at 198, 211 and Tr. III at 73. Plaintiffs testified that three of the four questions were not job-related. They also insisted that the rating panel's ultimate evaluation of them was based solely on their ability to express themselves orally and focused entirely and, therefore, improperly on only one of the four criteria of knowledge, skill, and abilities identified in the Vacancy Announcement. Similarly, plaintiffs contended that exclusive reliance on the applicants' responses to the four questions violated a provision of a collective bargaining agreement that required interview questions to be job-related. Tr. I at 104-5. Plaintiff Allen, who had been [ Page 4]

president and vice president of the union that represented the employees of the Federal Protective Service (Tr. I at 71) also testified that the agreement required the submission of a supervisory appraisal of demonstrated performance or potential performance for any vacancy and the agency's acceptance of one incumbent's (Fitzgerald's) application, that did not include such an appraisal, was a violation of the agreement. Tr. I at 106-7.

Finally, plaintiffs offered the testimony of the Assistant Chief of Police, Don Waldon, who served as Special Assistant to John Bates, the Director of the Federal Protective Service. Bates made the selections that the plaintiffs challenged. Waldon testified that he heard Bates say at one of the weekly staff meetings that "he was going to diversify the agency" and that Waldon understood him to mean that "he was changing the agency along racial and ethnic lines." Tr. I at 244-45. The Federal Protective Service had a predominantly African-American work force at the time to which Waldon referred.

The Government's Evidence

The government met the plaintiffs' case at every point, producing testimony that race was irrelevant to the ratings, that an African American was selected, that the personnel specialist's rating of all the applicants' qualifications as the same was fair and reasonable, that the position did require oral communication skills, that the questions were job-related, and that there was, therefore, no violation of the merit plan or the collective bargaining agreement. Finally, Bates testified that after he selected Spencer, the African American, for the position and learned that he could fill two more positions, he took the two applicants who had the next two highest scores on the list the rating panel had created when it ranked the applicants after their interviews. Tr. II at 133-38. That these two people were white had nothing to do with their selection because their [ Page 5]

selection was simply a matter of arithmetic based on the scores of an objective ratings panel that plaintiffs conceded did not consider race in arriving at those scores. Tr. II at 138.

The Government's Argument

Although the competing cases created genuine issues of material fact that only a jury could resolve, the government nevertheless insists that the verdict should be set aside and the court should have granted the motions to dismiss it made at the conclusion of the plaintiffs' case and at the conclusion of all the evidence.

The Insignificance of Spencer's Selection

As to the motion made at the conclusion of the plaintiffs' case, it is important to realize that, whatever argument the government makes now, the only arguments it made at the conclusion of the plaintiffs' case was that the selection of Spencer, an African American, defeated plaintiffs' prima facie case. Tr. II at 9.*fn4 As a variation on that theme, the government also relied on cases in which an employment decision, whether a selection, promotion, or transfer, involved several people. According to the government, the presence of members of the protected class within the group of persons who gained an advantage from that employment decision in itself defeats the claims of discrimination by a member of that same protected class. Tr. II at 10. The government also made the analogous argument that, since plaintiffs did not and could not challenge the [ Page 6]

selection of Spencer or the process that resulted in his selection as discriminatory, they could not claim that the same process that yielded the selection of the two white incumbents was discriminatory as to them. Tr. II at 10.

But, after the trial, the D.C. Circuit Court of Appeals held "that a plaintiff in a discrimination case need not demonstrate that she was replaced by a person outside her protected class in order to carry her burden of establishing a prima facie case under McDonnell Douglas." Stella v. Mineta, 284 F.3d 135, 146 (D.C. Cir. 2002). The government's argument to the contrary and the ...

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