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Waters v. United States Attorney General

June 22, 2005

MARY E. WATERS, PLAINTIFF,
v.
UNITED STATES ATTORNEY GENERAL, ALBERTO GONZALES DEFENDANT.



The opinion of the court was delivered by: Royce C. Lamberth, United States District Judge

FINDINGS OF FACT AND CONCLUSIONS OF LAW

This matter came before the Court for a bench trial on January 24-25, 2005. The Court makes the following findings of fact and conclusions of law.

FINDINGS OF FACT

1. Plaintiff, Mary E. Waters, has worked for the Department of Justice since 1980, and in the Environmental and Natural Resources Division ("ENRD"), Enforcement Section, since 1984. (Tr. 7.) She is an African American. (Tr. 7.) Since 1987 she has been a paralegal at grade GS-11. (Tr. 8; Pl. Exh. 1.)

2. In ENRD, a paralegal must be promoted to Supervisory Paralegal to achieve grade GS-12. (Tr. 8.)

3. Plaintiff applied for the position of Supervisory Paralegal in August of 2000 in response to Vacancy Announcement ENRD-00-0038. (Pl. Exh. 1.) Plaintiff was not selected for the position. Julia Bunnell, a Caucasian woman, was selected instead. (Def. Exh 8; Tr. 294-95).

4. Ms. Bunnell had worked with the ENRD at the Department of Justice since 1993 and has been a paralegal at Grade GS-11 since 1997. (Pl. Exh. 2.)

5. Both plaintiff and Ms. Bunnell had filled in as a Supervisory Paralegal as needed, had previous experience as supervisors in past jobs, had received awards, and had sufficient tenure within the ENRD and the Department of Justice. Both had paralegal certificates; however plaintiff had completed a Master's program in management at National Louis University in McLean, VA while Ms. Bunnell did not have a bachelor's degree. (Pl. Exh. 1; Pl. Exh. 2.)

6. Five applicants, including plaintiff and Ms. Bunnell, were certified by human resources personnel as qualified applicants for the position advertised in Vacancy Announcement ENRD-00-0038. and each was thereby worthy of consideration by the recommending officials . (Def. Exh. 8; Tr. 67-68). To be certified, an applicant needed to, among other things, possess the requisite knowledge, skills, and abilities ("KSA"s) listed in the Vacancy Announcement. (Tr. 169; see Def. Exh. 2.) The five KSAs were supervisory skills, legal research skills, knowledge of the Federal Rule of Evidence, knowledge of environmental statutes, and oral communication ability. (Def. Exh. 2.) Human resources personnel ranked each of the five applicants in the five required KSAs. (Tr. 171.) Ms. Bunnell scored 21. Plaintiff scored 19. (Def. Exh. 6.) Human resource's KSA ratings were only for the purpose of certification and were not passed along to the recommending officials . The recommending officials were not aware of the KSAs or the scores. (Tr. 302-03.)

7. The recommending officials indicated that due to the nature of the Supervisory Paralegal position, people skills and the ability to take on any needed task were as important as the paralegal skills listed in the ranking factors. (Tr. 92-93, 96-97, 302-03.) The Supervisory Personnel Specialist agreed these were important factors to consider in the interview process. (Tr. 188.) A candidate's education could be considered, but no particular level of education was required for the Supervisory Paralegal position. (Tr. 172-73.)

8. Plaintiff, with her promotion application, submitted her performance appraisal for the period of April 1, 1997 through March 31, 1998. Plaintiff received an overall rating of "excellent," the second highest of five possible ratings. Plaintiff received a rating of "excellent" in three of the five component job elements and a rating of "fully successful," the middle of the five possible ratings, in the two other elements. (Pl. Exh. 1). Though plaintiff has filed grievances over other performance appraisals, plaintiff did not grieve the 1997-1998 appraisal. Plaintiff's performance appraisal for the following year, April 1, 1998 through March 31, 1999, had lower ratings: overall, plaintiff's performance was rated at "fully successful;" (Def. Exh. 7; Tr. 36.), however, the recommending official never learned of this later evaluation until after he considered plaintiff's application, (Tr. 84-85). Never has plaintiff received an outstanding rating on any of her ENRD performance evaluations. (Tr. 29-30.)

9. Ms. Bunnell, with her promotion application, submitted her performance evaluation, which was for the period of April 1, 1999 through March 31, 2000. Ms. Bunnell received an overall rating of "outstanding," the highest possible rating. She received a rating of "outstanding" in four of the five component job elements and a rating of "excellent," the next highest rating, in the fifth element. (Pl. Exh. 2; Tr. 84-85). In every respect, Ms. Bunnell's performance evaluation was superior to plaintiff's.

10. Four of the five candidates, one having withdrawn his candidacy, were all, on paper, "highly qualified." (Tr. 75.)

11. The four remaining candidates were each interviewed for the position by the hiring officials, William Brighton and Pat Casey. (Tr. 75, 278-79.) Mr. Casey found Ms. Bunnell to be the front runner at this point based in part on the engaging, energetic, likable personality that she presented during the interview and in non-work-related encounters around the office. Mr. Casey thought plaintiff had also interviewed well and was a good candidate. (Tr. 281-82.)

12. The recommending officials had not worked personally with the selectee, Julia Bunnell, or the plaintiff. (Tr. 79-80.) Mr. Brighton therefore instructed Mr. Casey to seek out opinions regarding Ms. Bunnell and the plaintiff from attorneys and paralegals that had recently worked with them. (Tr. 80, 282-84.) Similar information was not sought regarding the other two candidates in part because the recommending officials had personally worked with them and in part because the recommending and selecting officials had, at that time, narrowed the field of candidates down to Ms. Bunnell and plaintiff: one candidate, a white male, did not seem to be a promising candidate and the other, a white female, had just gotten a law degree and the recommending officials had encouraged her to pursue law practice and believed she would soon leave ENRD to do that. Id.

13. Everyone spoken to regarding Ms. Bunnell gave her high evaluations and thought she would make a tremendous supervisory paralegal. (Tr. 87.) None of the people asked about plaintiff at that time recommended her for the position, and some criticized her work. (Tr. 282-88.) Of plaintiff's then current colleagues, three testified at trial and all three, Meochi ...


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