United States District Court, District of Columbia
DENISE A. BANKS, Plaintiff,
SONNY PERDUE, U.S. Secretary of Agriculture, Defendant.
MEMORANDUM OPINION AND ORDER
P. Mehta United States District Judge.
case, the court ruled that Plaintiff Denise Banks is entitled
to reinstatement as a remedy after a jury found that, in
January 2000, she was demoted from the Senior Executive
Service (“SES”) due to sex discrimination.
See Banks v. Perdue, 298 F.Supp.3d 94, 101, 113- 14
(D.D.C. 2018). Since that decision, the parties have tried,
but ultimately failed, to reach agreement as to how to carry
out the court's reinstatement order. Defendant U.S.
Secretary of Agriculture has assigned Plaintiff to the
SES-qualified position of Deputy Director for Civil Rights
Operations, which he contends is comparable to the position
Plaintiff occupied before her demotion. See
Def.'s Mot. to Resolve Dispute Concerning Equitable
Relief, ECF No. 195 [hereinafter Def.'s Mot.]; Def.'s
Suppl. Br. in Support of Def.'s Mot., ECF No. 198, at 2.
Plaintiff, on the other hand, disputes that the Deputy
Director position is comparable to the one she had some 19
years ago. See Pl.'s Opp'n to Def.'s
Mot., ECF No. 202 [hereinafter Pl.'s Opp'n], at 4- 7.
She contends that the new position occupies a lower rung in
the agency hierarchy and involves reduced supervisory
authority and lesser responsibilities than her former
position. See Id. at 5-7. Plaintiff asks the court
to find not only that her present assignment is an inadequate
reinstatement remedy, but to order Defendant to place her
into a different position, Deputy Director for the Center for
Civil Rights Enforcement, which she deems comparable. See
Id. at 7. Alternatively, Plaintiff asserts that, if the
court declines to grant her preferred position, she be
allowed to elect front pay over reinstatement as a remedy.
See Id. at 10.
what remains of this 11-year-old case is for the court to
decide whether the position to which Defendant has assigned
Plaintiff is comparable to the one from which she was
discriminatorily demoted in 2000. The court finds that the
assigned position is comparable. If Plaintiff declines to
work in the capacity, she will not be entitled to front pay
as an alternative remedy.
begin, the court quickly disposes of Plaintiff's demand
for placement as the Deputy Executive Director for the Center
for Civil Rights Enforcement. The court rejects that request
for the simple reason that Plaintiff's preferred job is
not an SES-designated position. See Def.'s Reply
in Support of Def.'s Mot., ECF No. 204, at 3 (citing
Second Suppl. Decl. of Shawn S. McGruder, ECF No. 204-1
[hereinafter 2d McGruder Decl.], ¶ 3). Therefore, even
if the court could assign Plaintiff to a specific position-a
question the court need not address-the job that Plaintiff
desires would not implement the reinstatement remedy.
Accordingly, the court will not grant Plaintiff her requested
court now turns to the issue of whether Plaintiff's
present position satisfies the reinstatement remedy. The
parties agree that the applicable standard in evaluating the
comparability of her present and past assignments is whether
the positions are “roughly equivalent in pay, benefits,
status, and responsibility.” Def.'s Mot. at 6
(quoting McVeigh v. Cohen, 996 F.Supp. 59, 61
(D.D.C. 1998); Pl.'s Opp'n at 2 (agreeing that
McVeigh supplies the applicable standard). Plaintiff
does not challenge the equivalency of her pay and benefits.
See Pl.'s Opp'n at 4-7. Rather, she insists
that the Deputy Director for Civil Rights Operations involves
a lower status and lesser responsibilities than her prior
position as Deputy Director of Civil Rights (Employment).
See Id. Plaintiff's argument, however, is
premised on a more exacting standard than the one she
concedes applies. She is not entitled to the same
position, only a “roughly equivalent” one.
McVeigh, 996 F.Supp. at 61. The Deputy Director for
Civil Rights Operations satisfies that standard.
complains that in the new position, she “falls at a
lower level in the chain of command.” Pl.'s
Opp'n at 4. Plaintiff asserts that before she reported to
the head of the Office of Civil Rights, “a
Senate-confirmed political” position, whereas now she
“reports to one of two Executive Directors two levels
down from the head of the Office.” Id. at 5.
But the “rough” equivalence of Plaintiff's
new position to her previous one is evident when, as
Defendant explains, it is viewed in the context of a recent
agency reorganization. For starters, as Defendant points out,
Plaintiff is mistaken that her previous supervisor, Rosalind
Gray, was a “Senate-confirmed political
appointee.” See Def.'s Reply at 6, 8. Gray
was a non-career SES member and political appointee, but was
not Senate confirmed. See Id. at 8. Moreover,
although Plaintiff is now one more step removed from the
Secretary than before, that is due to a reorganization that
added “Secretarial level positions to oversee all civil
rights activities” of the agency. Id. at 8. As
Defendant explains in detail, Plaintiff is effectively in the
same level as before, reporting directly to an administrator
that oversees the agency's civil rights function. Thus,
Plaintiff's new status is, at least,
“roughly” equivalent to her previous one.
her responsibilities, Plaintiff maintains that she now has
less supervisory authority and reduced duties as compared to
in her prior position. See Pl.'s Opp'n at
5-6. Not so. Although Plaintiff directly and indirectly
supervises fewer employees than before (60 versus 17, by her
account), see Id. at 5-6; Pl.'s Opp'n, Ex.
1, Declaration of Denise Banks, ECF No. 202-1, at 2, in her
new role she now has oversight and coordination
responsibilities over seven “Mission Areas” of
the agency, comprising more than 250 full-time employees.
See Def.'s Reply at 10-11 (citing 2d McGruder
Decl. ¶¶ 8-9). Such an arrangement satisfies the
“rough” equivalency standard. Additionally,
Plaintiff only vaguely asserts that her duties are not
comparable, as she offers no specifics about her purportedly
reduced role. See Pl.'s Opp'n at 6 (claiming
lesser duties in general categories of “leadership,
program delivery, and policy development”). In any
event, the duties are “roughly” comparable. As
before, she is responsible for coordinating certain civil
rights activities throughout the agency, planning civil
rights training, and interacting with agency components.
See Def.'s Mot. at 4; Def.'s Reply at 11
(citing Final Position Description, Ex. G, ECF No. 198-1,
8-12). She is also a member of the Assistant Secretary for
Civil Rights's leadership team. See Def.'s
Reply at 11. Plaintiff cannot genuinely argue that
she now has significantly lesser responsibilities than
although Plaintiff decries that her “liaison”
role lacks actual authority, Pl.'s Opp'n at 7, it is
hard to image how that is so. She is responsible for
overseeing and coordinating the civil rights function of over
250 full-time employees in multiple Mission Areas. Surely,
this is “roughly” equivalent to the authority she
court therefore finds that Plaintiff's present position
as Deputy Director for Civil Rights Operations is roughly
equivalent to her former post as Deputy Director of Civil
Rights (Employment) in pay, benefits, status, and
alternative, Plaintiff contends that, if the court declines
to place her in her preferred position, she should be
afforded the option of choosing a front-pay remedy instead ...