Petition — Smith v. Lubbers

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83 684

1 OCT 26 1985

IN THE a

Supreme Court of the United States

OCTOBER TERM, 1983

FLORENCE SMITH,

Petitioner,

WILLIAM L. LUBBERS, GENERAL COUNSEL,

NATIONAL LABOR RELATIONS BOARD,

Respondent.

PETITION FOR A WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS

FOR THE DISTRICT OF COLUMBIA CIRCUIT

WILSON - Erzs Printine Co.. Inc. - 789-0096 - WASHINGTON, D.C. 20001

prima facie

discrimination under Title VII of the Civil Rights

1964 and the Age Discrimination in Employment

TABLE OF AUTHORITIES

Cases: Pare .

Hackley v. Roudebush, 520 F.2d 1b.

Lanphear v. Prokop, 708 F.2d 1811 8

McDonnell Douglas Corp. v. Green, 411 U.S. 792..passim

Miller v. WFLI Radio Incorporated, 687 F.2d 136..

Paxton v. Union National Bank, 648 F. 2d 552, cert.

Rowe v. Cleveland Pneumatic Company, Numerical

Control, Inc., 690 F.2d 88 —

Texas Department of Community Affairs v. Bur-

dine, 450 U.S. 248 passim 15

Vaughn v. Westinghouse Electric Corp., 702 F.2d Ry

187, cert. granted, October 17, 1983, —— 1 N

U. S.L W. — (No. 82-2042) 8s US

i Age Discrimination in Employment Act of 1967, as

. amended, 29 U.S.C. § 633 2

4 ’ Civil Rights Act of 1964, Title VII, Section 717(a),

. 42 U.S.C. 2000-16 (a)

In THE

Supreme Court of the United States

OCTOBER TERM, 1983

No.

FLORENCE SMITH,

WILLIAM L. LUBBERS, GENERAL COUNSEL,

NATIONAL LABOR RELATIONS BOARD,

Petitioner,

PETITION FOR A WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS

FOR THE DISTRICT OF COLUMBIA CIRCUIT

Petitioner Florence Smith respectfully requests that a

Respondent. 5

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nern

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1 8 1

— 222

ane a ES

—

JURISDICTION

The judgment of the United States Court of Appeals

for the District of Columbia Circuit was entered on

June 1, 1983. A timely petition for rehearing and sug-

gestion for rehearing en banc was denied July 29, 1983.

The jurisdiction of this Court is invoked under 28 U.S.C.

1254 (1) (1976).

STATUTES INVOLVED

Section 717(a) of Title VII of the Civil Rights Act of

1964, 42 U.S.C. § 2000e-16(a), provides in pertinent

part:

All personnel actions affecting employees or appli-

cants for employment in executive agencies

(other than General Accounting Office) as defined in

section 105 of title 5 * * * shall be made free from

any discrimination based on race, color, religion, sex,

or national origin.

Section 15(a) of the Age Discrimination in Employment

Act of 1967, 29 U.S.C. 633a provides in pertinent part:

free any discrimination based on age.

STATEMENT

Petitioner entered employment with

the

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Sw te

Lat 7

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2 ;

The agency has no written standards for selection and

has a policy of not announcing the vacant positions and

of not notfying the unsuccessful candidates of their

rejection.

Between 1976 and 1980, Petitioner discussed her de-

sire for a transfer in several meetings with Deputy Gen-

eral Counsel John E. Higgins, Jr., and as recently as the

spring of 1980 Higgins told her that she was being con-

sidered for a lateral transfer to a field posiiton On

December 15, 1980, Petitioner filed an informal com-

plaint with an EEO Counselor. On January 12, 1981,

Petitioner filed a formal administrative complaint alleg-

ing sex and age discrimination by the NLRB’s refusal to

transfer her to a field position.

In May 1981, an opening for a lateral transfer to a

field position became available and the NLRB selected

Louella Nelson, a woman under 40, for that position.

The district court found that Petitioner established a

prima facie case of age discrimination (App. F, infra,

84a).* The court explicitly found that the NLRB gave

no reason for rejecting Petitioner for the Nelson posi-

tion.“ However, the NLRB “produced evidence” of sub-

jective supervisory appraisals of Nelson and Petitioner

and the court, after reviewing these exhibits, found that

Nelson’s appraisals were “clearly superior to plaintiff's.” .

Finding of Fact 33. Id. at 28a. The court concluded

that Petitioner was rejected for this position because

Nelson was better qualified than Petitioner. Id. There

is no evidence in the record to support a finding that this

was, in fact, a reason for the NLRB’s decision.

This reason for Petitioner’s rejection was articulated

for the first time in the court’s opinion and Petitioner,

therefore, had no opportunity to demonstrate at trial that

this reason was a pretext for discrimination. Addition-

ally, the court found that Petitioner did not establish a

prima facie case of sex discrimination under Texas De-

partment of Community Affairs v. Burdine, 450 U.S. 248

(1981), and McDonnell Douglas v. Green Corp., supra,

holding that a woman may not establish a sex discrimina-

tion claim for a position awarded to another woman. Id.

at 32, n. 17. The court did not consider the fact that

this position was filled by a woman after Petitioner filed

her administrative complaint alleging discrimination on

the basis of both sex and age and that this rejection was

but one more rejection in a long series of rejections for

similar positions. |

On appeal, Petitioner contended that the district court

did not apply the McDonnell Douglas-Burdine standard

In its brief on appeal, the government did not rely on

the McDonnell Douglas-Burdine standard and, at oral

argument, it contended that the NLRB met its rebuttal

burden by the totality of the evidence in the record. The

government cited no authority for this position.

The Court of Appeals affirmed the lower court’s deci-

sion expressly relying on the Findings of Fact, the Con-

clusions of Law, and the reasoning of the district court.

REASONS FOR GRANTING THE PETITION

THE DECISION BELOW CONFLICTS WITH DECT.

SIONS OF THIS COURT AND OTHER COURTS OF

APPEALS AS TO THE EMPLOYER’S BURDEN IN

REBUTTING A PRIMA FACIE CASE OF DISPARATE

TREATMENT

The basic issue raised by this case, how a defendant

may meet its burden of rebuttal after a prima facie case

of disparate treatment has been established, was set forth

in McDonnell Douglas Corp. v. Green, 411 U.S. 792

(1973). This Court held that “(t]he burden must then

shift to the employer to articulate some legitimate non-

discriminatory reason for the employee’s rejection.” Id.

at 802. The district court specifically found that the

NLRB articulated no reason for rejecting Petitioner for

In Miller v. WFLI Radio Incorporated, 687 F.2d 136

(6th Cir. 1982), the Court of Appeals for the Sixth Cir-

if Le yp tae ae sk Oe ee TF ry? ee

In Lanphear v. Prokop [Merit Systems Protection

Board], 703 F.2d 1311 (D.C. Cir. 1983), a reverse dis-

crimination case, the Court of Appeals for the District

of Columbia Circuit held that the district court clearly

erred in devising a reason not relied upon by the select-

ing official, that the MSPB “wanted new faces and they

wanted to remove most of the incumbents.” Id. at 1314.

The district court rejected the defendant’s reason, that

the plaintiff performed poorly during a previous assign-

ment to the position at issue, because the plaintiff demon-

strated during the trial that this reason was a pretext

for discrimination. He had been alerted to this reason

for his rejection during the agency’s investigation of his

administrative complaint.

In Paxton v. Union National Bank, 688 F.2d 552 (Sich

Cir. 1982), cert. denied, —— U.S. ——, 103 S.Ct. 1772

(1978), the Court of Appeals for the Eighth Circuit held

stay at his work station. However, the court of appeals

held that this reason could have been a viable reason but

there was no evidence in the record that such reason was,

225

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* * * 4

5 rl

search has disclosed no case in which a lower court has

permitted a defendant to meet its rebuttal burden with-

out articulating some reason for its decision. In the

instant case, the district court did not apply the McDon-

nell Douglas rule because it explicitly found that the

NLRB gave no reason for rejecting Petitioner for the

Nelson position yet found that the NLRB met its re-

buttal burden. The court examined supervisory apprais-

als of Nelson and Petitioner and gleamed the reason that

Petitioner was rejected because Nelson had a superior

record. (App. F, infra, at 28a.)

The courts below have misapplied McDonnell Douglas

because they have concluded that the defendant does not

have to articulate a reason for its decision so long as

there is evidence in the record from which the court can

devise some reason that will serve as an agency defense.

Thus, the District of Columbia Circuit will permit the

defendant to submit raw files to the court and under the

guise of “totality of evidence in the record” allow the

district court to review those files and articulate a reason

for an agency decision.

Certiorari is required so that this new defense ego the

government has devised for disparate

can be put to rest promptly, and in order ss

obedience to the settled law of this Court so that the

federal employer shall be required to conform to the

same rules in employment discrimination cases that are

required of all other employers. “The federal govern-

ment. . is a model for al: and exercises a significant

educational force by its example.” Hackley v. Roudebush, __

520 F.2d 108, 136 (D.C. Cir. 1975).

„

‘

co (Eh ors.

APPENDIX A

UNITED STATES COURT OF APPEALS

FOR THE DISTRICT OF COLUMBIA CIRCUIT

September Term, 1982

Civil Action No. 81-01747

No. 82-2138

FLORENCE SMITH,

Appellant

WILLIAM A. LURBERS, General Counsel,

National Labor Relations Board,

Appellee

And Consolidated Case No. 83-1005

Filed Jul. 29, 1983]

Before: Robinson, Chief Judge; Wright, Tamm, Wilkey,

Wald, Mikva, Edwards, Ginsburg, Bork and

Scalia, Circuit Judges; and Richey *, District

Judge, U.S. District Court for the District of

Columbia

ORDER

The Suggestion for Rehearing en banc of Appellant,

filed July 18, 1983 has been circulated to the full Court

„ Sitting by designation pursuant to Title 28 U.S.C. §292(a).

and no member has requested the taking of a vote

thereon. On consideration of the foregoing, it is

5 ORDERED by the Court en banc, that the aforesaid 7

Suggestion is denied. 4

3 Per Curiam 3

7 For the Court:

9 b

oS GroRGE A. FISHER S

K. Clerk P

5 By: /s/ Daniel M. Cathey

3 : DANIEL M. CATHEY

a First Deputy Clerk

APPENDIX B

UNITED STATES COURT OF APPEALS

FOR THE DISTRICT OF COLUMBIA CIRCUIT

September Term, 1982

Civil Action No. 81-01747

No. 82-2138

FLORENCE SMITH,

Appellant

WILLIAM A. LUBBERS, General Counsel,

National Labor Relations Board,

Appellee

And Consolidated Case No. 83-1005

[Filed Jul. 29, 1983]

Before: Tamm and Bork, Circuit Judges; and Richey *,

District Judge, U.S. District Court for the Dis-

trict of Columbia

ORDER

On consideration of the Petition for Rehearing of Ap-

pellant filed July 18, 1983, it is

* Sitting by designation pursuant to Title 28 U.S.C. § 292(a).

_ „ 1 3

a <a, xt

ORDERED by the Court that the aforesaid Petition

is denied.

1 Per Curiam

ee For the Court:

> GEORGE A. FISHER

Clerk

5 By: /s/ Daniel M. Cathey

a DANIEL M. CATHEY

First Deputy Clerk

oa ree Sy eT ee

APPENDIX C

UNITED STATES COURT OF APPEALS

FOR THE DISTRICT OF COLUMBIA CIRCUIT

Washington, D.C. 20001

June 1, 1983

GEORGE A. FISHER

Clerk

Re: 82-2138 & 83-1005—Florence Smith v. William A.

Lubbers, General Counsel

NLRB

Dear Counsel:

I am enclosing herewith a copy of the judgment of this

Court entered today in the above entitled case.

Yours,

CHRISTINE M. SMITH

Opinions Clerk

Enclosure

Distribution:

: . be ey

„ on „ „ 2 + —_

APPENDIX D

5 UNITED STATES COURT OF APPEALS

FOR THE DISTRICT OF COLUMBIA CIRCUIT

September Term, 1982

‘ Civil Action No. 81-01747

No. 82-2138

FLORENCE SMITH,

Je Appellant

WILLIAM A. LUBBERS, General Counsel,

. National Labor Relations Board

4 No. 88-1005

; FLORENCE SMITH,

a Appellant

CHAIRMAN, NATIONAL LABOR RELATIONS BOARD

[Filed Jun. 1, 1983]

een

Appeals from the United States Distriet Court

for the Distriet of Columbia

Before: Tamm and Bork, Cireuit Judges, and Richey,“

Judge, United States Distriet Court for the

Distriet of Columbia

P Ta

E JUDGMENT

These causes came on to be heard on the records on

appeal from the United States District Court for the

7 Distriet of Columbia, and were briefed and argued by the

N parties. While the issues presented have been accorded

full consideration by the court, they occasion no need for

( an opinion. See Local Rule 13(c). On consideration of

the foregoing, it is

ORDERED and ADJUDGED, by this Court, that the

judgment of the District Court appealed from in these

causes is hereby affirmed for the reasons stated in the

opinion of Judge Gasch dated July 30, 1982. It is

FURTHER ORDERED, by this Court, sua sponte, that

the Clerk shall withhold issuance of the mandate herein

until seven days after disposition of any timely petition

for rehearing. See Local Rule 14, as amended on No-

vember 30, 1981, and June 15, 1982.

Per Curiam

For the Court

s, George A. Fisher

GEORGE A. FISHER

Clerk

APPENDIX E

UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF COLUMBIA

Civil Action No. 81-1747

FLORENCE SMITH,

Plaintiff,

WILLIAM A. LUBBERS, General Counsel,

National Labor Relations Board,

Defendant.

[Filed Dec. 14, 1982]

MEMORANDUM-ORDER

Now pending before the Court are plaintiff's two

motions for relief from judgment on the ground of fraud

pursuant to Rule 60 of the Federal Rules of Civil Pro-

cedure (FRCP). Because both of these motions rest upon

the same grounds, the Court deals with both motions

together. After careful consideration of plaintiff’s mo-

tions, and defendant’s opposition thereto, the Court con-

cludes that plaintiff has failed to demonstrate sufficient

justification to the Court which would warrant the relief

sought.

BACKGROUND

Plaintiff, Florence L. Smith, in her complaint,

herein on Juiy 27, 1981, alleged that she had been

criminated against on the basis of age and sex by

one of defendant’s witnesses.

fendant, the National Labor Relations Board (NLRB).

Seeking relief pursuant to the Age Discrimination in Em-

ployment Act, 29 U.S.C. § 633a, amended by Pub. L. 95-

256 (April 6, 1978) and Title VII of the Civil Rights

Act of 1964, 42 U.S.C. 58 2000a-5, 2000e-16, plaintiff

alleged discrimination based upon defendant’s failure to

promote her and to transfer her to a regional field office.

Trial to the bench was held on March 8 to 11, 1982 and

concluded on May 24, 1982.1 On July 30, 1982, the Court

entered judgment for defendant. On August 17, 1982,

plaintiff moved for a new trial based upon newly dis-

covered evidence. Such motion was denied on November 1,

1982. On November 9, 1982, plaintiff moved for relief

from judgment pursuant to FRCP 60 (b) (1) and (b) (3)

based upon the alleged per jury of one of defendant’s wit-

nesses, Supervisory Attorney Leonard Bernstein. De-

fendant filed its opposition thereto on November 22, 1982.

Before the Court could consider the motion, plaintiff, on

November 26, 1982, again moved for relief from judg-

ment on the same grounds based upon the alleged perjury

of another of defendant’s witnesses, Supervisor Joseph

Rosenthal. Defendant filed its opposition to this motion

on December 6, 1982. The Court now focuses upon the

two motions.

Rule 60(b)(1) and (b)

Rule 60(b) of the Federal Rules of Civil Procedure

provides (in pertinent part) :

On motion and upon such terms as are just, the court

may relieve a party .. from a final judgment, or-

der, or proceeding for the following reasons:

(1) mistake, inadvertence, surprise or excludable

neglect;

1 Completion of the trial was delayed by the sudden illness of

10a

(3) fraud (whether heretofore denominated intrinsic

or extrinsic), misrepresentation, or other misconduct

of an adverse party.

Plaintiff alleges with regard to both motions that: (1)

the allegedly perjurious testimony of both witnesses con-

stituted surprise testimony; and (2) that such allegedly

perjurious testimony constitutes fraud on the part of

defendant. The Court hereinafter examines plaintiff’s

motions as to each of the grounds asserted.

A. Rule 60(b)(1)—Surprise

1. Testimony of Leonard Bernstein

Plaintiff alleges that the testimony of her Supervisory

Attorney, Mr. Leonard Bernstein, “constituted surprise

testimony as it was not revealed in any pleading or in the

Investigative Report prepared by the NLRB.” She fur-

ther supports this allegation with the fact that until the

first day of trial, Mr. Bernstein was to be her witness.

It is well established in this circuit that in order to

establish that the testimony of a witness was a surprise,

a foundation must first be established (generally through

proffer of a prior inconsistent statement) demonstrating

true surprise. See Troublefield v. United States, 372 F.2d

912, 915 (D.C. Cir. 1969). Plaintiff in the instant case

fails in this regard to establish a foundation beyond the

bare allegation that Mr. Bernstein’s testimony was a

surprise. In fact, after reviewing the testimony of Mr.

Bernstein, the Court fails to see how plaintiff was sur-

prised by his testimony.* The Court accordingly con-

cludes that plaintiff has failed to establish surprise in the

testimony of Mr. Bernstein.

— —

2 The gist of Mr. Bernstein's testimony was that he was satis-

fied with plaintiff's work on the administrative case she was in-

volved in. See Transcript, Vol. III-B, pp. 1-11.

lla

2. Testimony of Joseph Rosenthal

Again plaintiff asserts that because the gist of Mr.

Rosenthal’s testimony was not revealed in the Investi-

gative Report prepared by defendant or in the pleadings,

such testimony was a surprise. For the same reasons that

plaintiff’s allegation of surprise in the testimony of Mr.

Bernstein was rejected, the Court rejects plaintiffs’ allega-

tion of surprise in the testimony of Mr. Rosenthal.

B. Rule 60(b)(3)—Fraud

With regard to plaintiff’s allegation of fraud on the

part of defendant in the alleged perjurious testimony of

both Mr. Bernstein and Mr. Rosenthal, the Court feels

that because the nature and strer gth of these allegations

are similar, these allegations are appropriately dealt with

together.

The Court finds the language of Judge Brennan (now

Justice of the Supreme Court) of the Supreme Court of

New Jersey in Shammas v. Shammas, 9 N.J. 321, 88

A.2d 204 (1952), dispositive of Ms. Smith’s allegations of

perjury:

Perjured testimony that warrants disturbance of a

final judgment must be shown by clear, convincing

and satisfactory evidence to have been, not false

merely, but to have been wilfully and purposely

falsely given, and to have been material to the issue

tried and not merely cumulative but probably to have

controlled the result. Further, a party seeking to be

relieved from the judgment must show that the fact

of the falsity of the testimony could not have been

discovered by reasonable diligence in time to offset

it at trial or that for other good reason the failure

to use diligence is in all the circumstances not a bar

to relief.

Id., 88 A. 2d at 208-09 (citations omitted); accord Rosier

v. Ford Motor Co., 878 F.2d 1882, 1889, reh. den, 578

12a

F.2d 871 (5th Cir. 1978); see also Wilkin v. Sunbeam

Corp., 466 F.2d 714 (10th Cir. 1972), cert. denied, 409

U.S. 1126 (1973); DiVito v. Fidelity & Deposit Co. of

Md., 361 F.2d 936 (7th Cir. 1966). While the case in

point involved the New Jersey rule of procedure govern-

ing relief from judgment, that rule is virtually identical

to FRCP 60. Compare FRCP 60 with Shammas, supra,

88 A.2d at 207. In the instant case, plaintiff’s proffered

evidence fails to establish that Mr. Rosenthal’s testimony

was knowingly falsely given. Further, Mr. Rosenthal’s

report concerning plaintiff’s performance, in his regional

office was not the only uafavorable report regarding plain-

tiff's work, and as such, is merely cumulative. Finally,

the hiatus in the trial of more than two months caused

by the sudden illness of one of defendant’s witnesses cer-

tainly afforded plaintiff an opportunity to discover

through reasonable diligence the alleged falsity of Mr.

Rosenthal's testimony in time to offset its effect at trial.

This plaintiff failed to do.

With regard to the testimony of Mr. Bernstein, the

analysis above is equally applicable. In addition, after

thoroughly reviewing the testimony of Mr. Bernstein and

the proffered affidavit of Mrs. Shevchuck, the Court is

unpersuaded that Mr. Bernstein’s testimony was false in

any way. With regard to Mr. Bernstein’s statement that

plaintiff had not seen any witnesses alone, it must be

noted that the question to which the witness was respond-

ing was prefaced by: “To the best of your knowledge

.. . . At best, plaintiff’s proffered evidence establishes

that Mr. Bernstein had no knowledge of any solo inter-

views conducted by Ms. Smith. Finally, plaintiff has

proffered no evidence whatsoever that defendant suborned

the alleged perjury of either witness.

CONCLUSION

After carefully reviewing plaintiff's motions, the memo-

randa in support thereof and in opposition thereto, and

13a

the entire record herein, the Court is of the opinion that

plaintiff is seeking to relitigate her claims. Therefore,

her motion is denied. Mastini v. American Telephone and

Telegraph Co., 369 F.2d 378 (2d Cir. 1966), cert. denied,

387 .S. 983 (1967). Accordingly, it is by the Court this

18th day of December, 1982,

ORDERED that plaintiff’s motion for relief from judg-

ment on the ground of fraud of Supervisory Attorney

Leonard Bernstein be, and hereby is, denied; and it is

further

ORDERED that plaintiff’s motion for relief from judg-

ment on the ground of fraud of Supervisor Joseph Rosen-

thal be, and hereby is, denied.

/s/ Oliver Gasch

Judge

[OLIVER GASCH]

ida

APPENDIX F

UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF COLUMBIA

Civil Action No. 81-1747

FLORENCE C. SMITH,

Plaintiff,

WILLIAM A. LURBBERS, General Counsel,

National Labor Relations Board,

Defendant.

Filed Jul. 30, 1982)

MEMORANDUM

: under 29 U.S.C. § 633a by refusing or f

: fer her to regional field offices and by

1 mote her to G8-14 following transfer. Trial to

. was held on March 8-11, 1982 and concluded

25, 1982. Accordingly, the Court, pursuant to

Civ. P. 52(a), issues the following findings of fact

othanelusions of law.

a 1 Completion of the trial was delayed by the sudden illness

one of defendant’s witnesses.

The plaintiff in this case alleges that the General

Counsel’s Office of the National Labor Relations Board

(NLRB) has discriminated against her on the basis.

sex under 42 U.S.C. § 2000e-16 and on the basis of

8 8

;

177871

— ee

15a

FINDINGS OF FACT

1. Plaintiff Florence L. Smith is a female citizen of

the United States and a resident of Maryland. Stip. . 1.

She is currently employed as a GS-13 attorney in the

Research and Policy Planning Branch, Division of

Advice, (LR) Office of the General Counsel NLRB. Id.

2. The NLRB is an agency of the federal government,

and the General Counsel is a separate autonomous office

with the NLRB. The General Counsel is a named de-

fendant in his official capacity as the head of a separate

independent office. Id. J 2.

Plaintiff's Career at NLRB

8. On July 30, 1973, the plaintiff, then a recent law

school graduate and 49 years of age, was hired at the

GS-9 level by the office of General Counsel.“ Stip. . 3,

6; Plaintiff’s Exh. 65. She was assigned to LR at that

time. Stip. . 9.

4. Plaintiff advanced to grades 11, 12, and 13 at the

standard rate of progression for NLRB attorneys. Stip.

73. During the period 1973 through the middle of 1977,

plaintiff received a number of evaluations of her work in

LR and of her detail to Board Chairman Murphy’s staff.

These evaluations ranged from above average to excel-

lent. Plaintiff's Exh. 27, 29, 30, 32, 38, 34; Trans. Vol.

I, at 10 (Smith). In January 1976, plaintiff received a

2 Facts stipulated to at the pretrial conference are referenced

as “Stip.” and by paragraph numb

*The parties have stipulated that GS-9 is the normal entry

grade for NLRB attorneys. Stip. { 3.

* Citations to trial testimony are given by volume and page with

the name of the witness in parentheses. The parties only ordered

transcriptions of portions of the trial testimony. References to

untranscribed testimony is made by the name of the witness.

16a

Certificate of Commendation and a within- grade salary

increase as a result of “the high level of effectiveness”

demonstrated by her work in LR. Plaintiff's Exh. 66,

67.

5. At some point in 1975 or 1976, after plaintiff had

been in LR for over two years, she began to express a

desire for a transfer.“ Plaintiff made an appointment

with John Higgins, Deputy General Counsel to discuss

her desire. Trans. Vol. I, at 16-17 (Smith). Higgins

advised plaintiff that it was not true that she would

never be transferred from LR. Stip. . 9.

6. In the summer of 1977, the plaintiff was given a

detail to the Advice Branch, where she worked under the

immediate supervision of Peter Mirsky and Catherine

Goldman and under the general supervision of Jane

Clark. Stip. 710; Trans. Vol. I-A, at 7-9 (Datz). At

the conclusion of this detail in the fall of 1977, plaintiff’s

trial. The Court finds plaintiff's testimony on these points to be

scarcely credible. The persistent denials of def endant's witnesses

and plaintiff's demeanor on the witness stand suggests to he Court

Higgins’ experience with Mrs. Smith’s memory of

17a

that branch. Trans. Vol. I-A, at 11 (Datz); Defendant’s

Exh. G, H. Plaintiff has not accused either Goldman or

Clark of discrimination, and her testimony about Peter

Mirsky was not persuasive.* See Trans. Vol. IV, at 24

(Smith).

7. Plaintiff returned to LR where she continued to

work until spring of 1978. During this period she con-

tinued to do Advice cases on an ad hoc basis. Trans. Vol.

I-A, at 12 (Datz).

8. From May 1978 to February 1979, Smith was de-

tailed to the Appellate Court Branch, Division of En-

forcement Litigation. This division of the NLRB handles

litigation before the United States Court of Appeals and

the Supreme Court. Smith’s supervisors were John El-

ligers, Elliot Moore, Paul Spielberg, and Janet McCaa.

Stip. 7 11.

9. While plaintiff was on this detail, she received her

annual evaluation from her LR supervisors for the period

July 1977 to July 1978. These evaluations, written by

Herbert Weiser and Standau Weinbrecht, both rated

plaintiff not recommended for promotion. See Defendant’s

Exh. I, J. The Weiser evaluation pointed out that Smith

at times overlooked or improperly classified major issues

„At trial plaintiff admitted that she had alleged that only

Higgins had discriminated against her. Trans. Vol. IV, at 81

(Smith). Plaintiff did make certain vague accusations about

Mirsky’s motivation in giving her a bad evaluation. Trans. Vol.

I, at 91-92. See Defendant’s Exh. G (Mirsky evaluation of plain-

9 — — — aan

alleged discontent. See Defendant’s Exh. FF. Although plaintiff

claimed not to have seen the Mirsky evaluation until later, it is

clear that he discussed his problems with her work. Trans. Vol.

I, at 91-92; Vol. IV, at 24 (Smith).

3 *

P d

18a

in her LR work but that she had helped the branch get

rid of its backlog by doing more work than was normally

required. Defendant's Exh. I. However, the evaluation

focused on a statistical survey Smith and compiled on her

own initiative to demonstrate that she was doing more

work than other LR attorneys. Jd. This survey, because

it implied that other workers were not doing their fair

share of the work, had evidently caused morale problems

in the branch. See Defendant’s Exh. J, at 2. This inci-

dent and plaintiff’s negative attitude toward LR work

led to the Weiser recommendation. Defendant’s Exh. I.

Weinbrecht concurred in the Weiser evaluation and

pointed out that the survey incident was merely one in

a series of incidents caused by Smith’s “competitive

spirit.” Defendant’s Exh. J. To Weinbrecht, these inci-

dents cast doubt on Smith’s potential as a supervisor.

Id. The Weinbrecht and Weiser evaluations were over-

ruled by Harold Datz. Defendant’s Exh. K. He based

his decision, not upon disagreement with Weiser and

Weinbrecht’s feeling that Smith’s survey was “improper,”

but out of an awareness of her frustration with LR work,

her recent illness, and her lack of success in obtaining a

transfer. He did not believe that there was anything to

suggest that the Weiser and Weinbrecht evaluations were

motivated by malice or in retaliation for Smith’s com-

plaints about the lack of work in LR.“ Defendant’s Exh.

K; Trans. Vol. I-A, at 15-18 (Datz).

10. The detail to Enforcement did not result in a

transfer because Smith’s supervisors were not satisfied

The Weiser and Weinbrecht evaluations were retained in Smith’s

discriminatory animus. See Trans. Vol. I-A, at 15 (Data). More

evaluations. Id. Vol. II-A at 29 (Datz). Because the evaluations

had nothing to do with discrimination, the Court will not order

their removal. See infra pp. 27-28.

> . 7 % N

ee 125 Es . -

nme eee

19a

with the way she was doing her work. Trans. Vol. I-A, at

19 (Datz). This was the opinion of Schumann and Moore

whose testimony was not transcribed. She also worked on

several enforcement briefs and, her appraisal by Paul J.

Spielberg was “satisfactory” although he noted: “[S]he

ran into trouble .. . devising and executing an effective

approach to the specific problems of each case,” and

pointed out some problems with her legal writing ability.

Plaintiff's Exh. 13. An evaluation of another written

brief by Smith was mixed. Defendant’s Exh. L. Plaintiff

has not claimed that these officials discriminated against

her.

11. When plaintiff’s detail to Enforcement came to an

end, Datz decided that reassignment to LR was not in

her best interests. Trans. Vol. I-A, at 19 (Datz). Conse-

quently, he tried to arrange a field assignment for her.

Trans. Vol. I, at 21 (Smith); Trans. Vol. I-A, at 19-20

(Datz). However, because of the mixed evidence of

Smith’s performan.e, an interview was set up for her

with Gerald Kobell, Assistant General Counsel of the

NLRB. Trans. Vol II, at 10 (Kobell). Kobell aptly de-

scribed the motivation for the interview: “on the one

hand we had appraisals from the Legal Research Branch,

which were somewhat favorable. She had done fairly well

there. On the other hand, she had been on detail in

Advice, and the appraisals were not favorable . and

Mr. Eugene Rosenfeld, my lead superior . . decided that

the best course of action would be for one of us to inter-

view Florence, to get a firsthand view of her ability ....

Id. at 10-11.

12. In this interview, Kobell gave Smith a hypothetical

case and asked her for her analysis and recommenda-

tions. Trans. Vol. II, at 12 (Kobell). Although Kobell

gave Smith a fairly simple fact pattern, she did not do

very well. Id. She did not point out which witnesses

should be questioned, and she was unable to recommend

a result. Id. at 13-21. Kobell found her performance to

20a

be “substandard,” id. at 20, and was surprised, in view

of her experience with the NLRB, that her legal analysis

of the elements of the case did not even compare favor-

ably with that of new applicants. Id. at 20-21. Kobell

memorialized his views of the shortcomings of Smith’s

performance in a memorandum, Defendant’s Exh. Q,

which stated:

I concluded that she does not have good potential to

develop into a skilled investigator or that she will

perform well in the litigation of an unfair labor

practice case before an Administrative Law Judge.

She did not display the ability to elicit facts, to

follow up leads, and to explore avenues which would

be of assistance in determining whether a conclusion

was supported by appropriate evidence.

Id.

13. Despite Kobell's generally unfavorable evaluation

of plaintiff's potential for fleld work, she was eventually

detailed to the Philadelphia Regional Offic. This detail

lasted from March through May 1979, and plaintiff w s

supervised by Joseph Rosenthal and Francis Hoeber.

Stip. 13. The appraisals of plaintiff’s work during this

detail were mixed. Her excellent attitude and willingness

to work were unquestioned, but her legal writing and

analysis were not up to the level usually required for

field work. Plaintiff’s Exh. 14, 15. Plaintiff did not claim

that any of the NLRB official. involved in the detail had

Smith claimed that during the interview Kobell told her:

“I don’t think a woman your age should be doing field

Trans. Vol. I, at 22 (Smith). Kobell denied making this

aes

2la

discriminated against her. Trans. Vol. I, at 208, 233.

The detail did not become a permanent transfer.

When Smith returned to Washington she was able on

her own initiative to get a detail to the Office of Rep-

resentation Appeals. Stip., 714; Trans. Vol. I, at 26

(Smith). All appraisals of Smith’s work during this

detail were generally favorable in their discussion of her

attitude and willingness to work, Plaintiff’s Exh. 16, 17,

18, but two evaluations also pointed out that she had

problems with legal writing and analysis. Plaintiff's

Exh. 16, 17.

15. At the end of plaintiff’s detail to the Office of

Representation Appeals, she went to see Datz to inquire

whether he would allow her to have a detail on the staff

of Board member Jenkins. Trans. Vol. II-A, at 4 (Datz).

Datz had no objections, and the detail began in December

of 1979.

16. Datz arranged to have the detail to Board mem-

ber Jenkins become a transfer in May 1980. He took this

action because in March 1980 the union that represented

the attorneys in LR filed a grievance. Trans. Vol. II-A,

at 4 (Datz). The attorneys in LR were complaining

because Datz had allowed plaintiff to go on numerous

details while the other LR attorneys were left to carry

on the work of the Branch without her. Indeed, the LR

attorneys claimed that a backlog of cases had arisen, in

part at least because Smith was on detail. Id. at 4-6;

Defendant’s Exh. Z. To placate the union Datz made an

effort to have Advice Branch cases made available to LR

attorneys and tried to have Smith’s detail made perma-

nent. Trans. Vol. II-A, at 6-7 (Datz). Datz met with

Smith and told her that she would be transferred to

Jenkin’s staff and that if, after six months, her work was

satisfactory, she would be allowed to stay there. Id. at 7.

If her work did not satisfy the other members of Jenkins’

staff, she would be transferred back to LR. Datz also

22a

told her that this transfer was the last of his special

efforts to get noncontractual details for Smith.“ Id.

17. In September of 1980, Datz was informed by a

Mr. Leet of Jenkins’ staff that Smith’s transfer was not

working out satisfactorily. Trans. Vol. II-A, at 9 (Datz).

Datz met on September 18 with Smith and Deputy Gen-

eral Counsel Higgins to discuss the situation and her

pending request for a transfer to the Fort Worth office.

Smith was informed that, pursuant to the terms which

changed her detail into a transfer, she would be trans-

ferred back to LR. Id.; Trans. Vol. III-B, at 12 (Hig-

gins). At first Smith did not remember the agreement,

but she later admitted the gist of the previous conversa-

tion. Trans. Vol. III-B, at 12.

18. On October 26, 1980, Smith was transferred back

to LR where she remains today. Stip. J 16.

19. Subsequent to the September 18, 1980 meeting,

plaintiff retained counsel in the person of a Mr. Curtin,

who arranged an appointment o speak with Higgins.

Trans. Vol. III-B, at 20 (Higgins). In preparation for

this meeting Higgins asked Datz to prepare a summary

of Smith’s employment history with the NLRB. Id.;

Trans. Vol. II-A at 20 (Datz). This summary consisted

mainly of negative comments abstracted from evaluations

of Smith’s work. Trans. Vol. II-A, at 20 (Datz); Plain-

tiff’s Exh. 11. Although this memorandum was not origi-

nally intended to be placed in Smith’s appraisal file, it

was eventually found there. Trans. Vol. III-B, at 21

The NLRB’s contract with the union requires that approxi-

mately 20 details of attorneys be made each year. Most of Smith’s

details were above and beyond the contract requirements. Indeed,

the number of details Smith made are a tribute to two thiugs:

1) Smith’s persistence in trying to get a transfer and 2) Datz’

23a

(Higgins). At the meeting with Curtin, Higgins indi-

cated that he would not give a time frame within which

plaintiff would receive further consideration for a transfer

because he feared such an indication would be interpreted

as a promise. He would, however, not foreclose the pos-

sibility that Smith might get a transfer to a field office at

some «ime in the future. Id. at 22-23.

20. Plaintiff did not file an informal complaint of dis-

crimination until December 15, 1980, a short time after

Curtin’s discussion with Higgins.

21. To summarize plaintiff’s career at NLRB, it is

clear that in her early years she did an excellent job and

received excellent appraisals but that she was unsuccess-

ful in gaining a transfer because she lacked certain legal

skills. This deficiency was a persistent refrain in the

testimony at trial and is reflected in various appraisals of

her work.“ After a time plaintiff’s frustration at not

getting a transfer even caused her work at LR to fall

below its former exemplary standard.

The Transfers and Promotions

22. Since at least 1972, the collective bargaining agree-

ments covering employees of the General Counsel’s Office

of the NLRB have included provisions governing transfer

from headquarters to field offices. The contracts provide

10 This view of plaintiff's work remains even if one does not

consider those evaluations—Weiser, Weinbrecht, Clark, and Mirsky

—whose regularity plaintiff challenges. The only consistently

positive appraisal of plaintiff for work done outside LR was that

by Donald Salins. Plaintiff's Exh. 18. Other appraisals, though

praising her attitude, found her work to be less than. outstanding

or pointed out her problems with legal analysis. See Plaintiff's

Exh. 13, 14, 15, 16, 17, 26. In particular, the Court was impressed

by the evaluation of plaintiff written by Datz. Plaintiff’s Exh. 87.

Datz was a particularly credible witness, and his evaluation sum-

marizes the persistent problems with Smith’s work. She does not

claim that Datz discriminated against her. Trans. Vol. I, at 104

(Smith).

24a

that employees may request to have their names placed on

“transfer registers” for each field office. An attorney will

be considered for transfer only for offices for which he or

she has asked to be placed on the register. Seniority on a

transfer register does not guarantee selection. Stip. N 23.

Selecting officials are under no obligation to select the

first person on the register. Trans. Vol. III, at 12 (Stack).

23. The 1979 Collective Bargaining Agreement pro-

vided that first consideration would be given “to the first

10 employees on the register for that office, provided that

the number in this area of first consideration shall be in-

creased by the number of GS-13 and GS-14 employees who

are among the top 10 on the register.“ Stip. 7 25. Selec-

tions from the area of first consideration cannot give rise

to a union grievance. There were no other written guide-

lines for selection, and the decision seems to be in the dis-

cretion of the Associate General Counsel who makes the

decision. Trans. Vol. II, at 42-43 (Kobell). Each transfer

decision is an independent event. Promotions to GS-14

following transfer generally take two years and are con-

tingent upon there being a GS-14 vacancy in a particular

office. Trans. Vol. LI, at 39-40 (Stack).

24. There have been 23 field transfers to offices for

which plaintiff was on the register. Plaintiff’s Exh. 75.

At trial plaintiff pointed out 11 transfers to which she

thought she was entitled.“ Trans. Vol. I, at 47 (Smith).

Those transfers were given to the folluwing candidates:

Amy Krieger, Willy Vance, Eileen Hamamura-Miller,

Howard Achtsam, Mark Kachor, Ann Cronin, Joseph

Metscher, Melvin Kang, Harriet Levin, Charles Posner,

and Robert Ellison. Only five of these transfers—

Metscher, Kang, Levin, Posner, and Ellison—were made

within 30 days of plaintiff’s visit to the EEG counsellor,

11 No evidence was submitted by plaintiff as to the other 12

transfers.

25a

or thereafter.* Because of the Court’s resolution of the

continuing discrimination argument raised by plaintiff,

see pp. 17-20 infra, it will not discuss those disputed

transfers which occurred before November 15, 1980.

Plaintiff submitted no evidence“ concerning three other

transfers which occurred during this period Nancy Wat-

son, R. Michael Smith, and Louella Nelson. Nonetheless,

the defendant presented evidence on these transfers, and

the Court will consider them.

25. The transfers of Levin, Posner, Metscher, Kang,

R. M. Smith, and Watson were made by Associate Gen-

eral Counsel Stack. Stack was familiar with plaintiff’s

work and her desire for a transfer because she had come

to his office to speak to him on those subjects. Trans.

Vol. III, at 8. He had also learned that she had worked in

several branches of the Washington office and had not

performed well. Indeed, Stack reiterated the persistent

criticism of Smith’s work:

The problem with her performance was that she

lacked or had the deficiency in analytical skills. She

had difficulty identifying issues in complex fact situa-

tions. :

She had also difficulty applying the law that she

knew to the set of facts, and these offices where she

had beeen detailed, such as the Advice Branch, none

of the people who had reviewed her performance,

who had supervised her performance wanted her as a

permanent attorney on the staff.

12 However, the Court has reviewed the testimony regarding the

other transfers and the appraisal] files of the successful candidates

and finds no discrimination in the transfer decisions. Thus the

other transfers do not even provide relevant background on the

discrimination issue. See United Air Lines, Inc. v. Evans, 431

U.S. 558, 558 (1977).

26a

Id. at 18. Stack also knew of Smith’s experience in the

Philadelphia Regional Office and spoke to Hirsch about

her performance. Jd. at 14. Moreover, Stack spoke to

Gerald Kobell about the interview with Smith and learned

that Kobell did not believe that Smith possessed the

analytical skills necessary for a field transfer. Id.

26. In making transfers Stack placed the highest value

on a potential transferee’s legal skills, especially legal

analysis. Trans. Vol. III at 37-38. All of the selectees

possessed “very good to excellent” skills in the areas that

Stack valued most; Smith did not. Id. at 38. The Court

found Stack’s testimony convincing * and supported by

other testimony as well as the appraisal files of the suc-

cessful selectees. Stack noted that deficiencies in legal

skills, especially analysis, if not improved with a few

years’ experience, are more serious than temporary atti-

tude problems. Id. at 23. Stack personally interviewed

all selectees.

27. Stack selected Joseph Metscher for the San Fran-

cisco Regional Office in December of 1980. The decision

was based in part on Metscher’s successful detail to the

Oakland Regional Office, a detail which resulted in two

separate requests from that office that Metscher be given

a permanent transfer. Trans. Vol. III, at 18-19. Stack

discovered that Metscher had had some attitude problems

while assigned to the Advice Branch but concluded that

Metscher had superior legal skills and that his attitude

problems had disappeared while on detail to Oakland.

Stack’s conclusions are supported by Metscher’s appraisal

file. See Defendant’s Exh. AA-15.

28. Stack selected Melvin Kang for transfer to the

Seattle Regional Office in January of 1981. Although

14 Stack repeatedly pointed that he focused on an

applicant’s

legal skills, particularly writing and analysis. ‘ee tae

15 (Kachor), 21 (Metscher), 24-25 (Kang), 31 (Posner), 88

27a

Kang had no experience outside the Advice Branch, he

had excellent legal skills. Trans. Vol. III, at 24-26. This

conclusion is supported by the appraisal file, in which

Kang was rated very good to excellent consistently. See

Defendant’s Exh. AA-16. This file is appreciably better

than plaintiff's. Even though Smith had had several de-

tails and in theory more “experience” than Kang, the

Court credits Stack’s observation: “What counts when

you are talking about someone’s experience is what kind

of legal skills they demonstrate.” Trans. Vol. III, at 26

(Stack).

29. Stack transferred Harriet Levin to the San Fran-

cisco Regional Office because of her legal skills. Trans.

Vol. III, at 32-33. The Levin appraisal file demonstrates

that she developed rapidly as an attorney. Her perform-

ance was well above average. Defendant’s Exh. AA-17

(Memorandum, dated August 28, 1979). A review of this

file reveals her progress to have been substantially better

than plaintiff’s and supports Stack’s stated reasons for

selecting Levin for transfer.

30. Stack transferred Charles Posner and Nancy Wat-

son to the San Francisco Regional Office in April 1981.

Trans. Vol. III, at 32, 35 (Stack); Defendant’s Exh. AA-

18, AA-19. Stack was impressed by reports of Posner’s

excellent legal skills, especially since Posner had only been

with the NLRB for a short time. Trans. Vol. III, at 31.

Similarly, Watson had an excellent reputation and had

always performed well. Jd. at 34. This impression is sus-

tained by the appraisal files which have glowing accounts

of Posner’s and Watson’s performances. Defendant’s Exh.

AA-18, AA-19.

31. R. Michael Smith was selected by Stack for trans-

fer to the Seattle Regional Office on April 29, 1981. Mr.

Smith had also progressed quickly at NLRB, and had

quickly learned how to deal with complex cases. Trans.

Vol. ITI, at 36-37 (Stack). Stack’s conclusion is supported

by the appraisal file. Defendant’s Exh. AA-20.

28a

32. Robert Ellison was transferred to the Albany Office

by Gerald Kobell on the basis of Kobell’s personal knowl-

edge of Ellison’s work, Ellison’s excellent recent ap-

praisals, and because Kobell “decided that Ellison had the

best potential to develop into a skilled trial attorney.”

Trans. Vol. II, at 35. Ellison had quick analytical abili-

ties. Jd. This conclusion is amply supported by Ellison’s

excellent record. Defendant’s Exh. AA-22.

33. Neither plaintiff nor defendant presented any evi-

dence concerning the May 7, 1981 transfer of Luella

Nelson to the Oakland Regional Office. However, her ap-

praisal file is in evidence as Defendant’s Exh. AA-21.

Review of this file demonstrates that Ms. Nelson was

clearly a superior candidate for transfer. She was given

a Certificate of Commendation for sustained superior

performance in Angust 1980, and her evaluation file

demonstrates that her performance had been outstanding.

Her record was clearly superior to plaintiff’s in this case.

CONCLUSIONS OF LAW

This Court has jurisdiction over this matter under 42

U.S.C. $§ 2000e-5, 2000e-16, Title VII of the Civil Rights

Act of 1964 (Title VII), as amended, and 29 U.S.C.

§ 638a, the Age Discrimination in Employment Act of

1967, as amended (ADEA).

A. Plaintiffs Continuing Discrimination Claim

In an Order and Memorandum dated February 11,

1982, the Court refused to dismiss plaintiff’s claims of

discrimination arising from acts occurring prior to No-

vember 15, 1980 in order to give plaintiff an oppor-

tunity to prove her allegation of continuing discrimina-

tion.” See Shehadeh v. Chesapeake & Potomac Telephone

18 Plaintiff did not make her informal EEO complaint until De-

cember 16, 1980. Under 28 C. F. R. § 1613.214(a) (1) (i), a federal

employee must contact an EEO counsellor with an informal com-

29a

Co., 595 F.2d 711, 724 (D.C. Cir. 1978). The require-

ments for establishing a continuing violation of Title VII

have been formulated in various ways by the Court of

Appeals for this circuit. In Aikens v. United States

Postal Service, 642 F.2d 514, 516 n.1 (D.C. Cir. 1980),

vacated on other grounds, 458 U.S. 902 (1981), the Court

stated that plaintiff had to show that he was adversely

affected by an employment policy or practice that con-

sistently held him in the lower echelons of employment.

In the context of the Age Discrimination Act, the Court

has stated that a prerequisite to the finding of continuing

discrimination is the finding of present violation of the

Act. Marcellaro v. Goldman, 643 F.2d 813, 816 (D.C.

Cir. 1980). In Milton v. Weinberger, 645 F.2d 1070

(D.C. Cir. 1981), the court stated that a continuing viola-

tion case required a related series of acts, one or more

of which falls within the limitation period, id. at 1075,

or “continuing discrimination, pervasive bias, or unlaw-

ful employment practices.” Id. at 1076. The facts of this

case show that the continuing violation theory, no matter

how it is framed, is inapplicable to plaintiff’s situation.

As will be discussed below, plaintiff has not proved a

present violation of either Title VII or the ADEA. More-

over, even assuming a present violation, plaintiff has

shown neither a continuing policy or practice of discrimi-

nation nor a related series of discriminatory acts. Plain-

tiff’s case rests almost entirely on her own self-serving

testimony, which although not particularly credible, de-

picts an unrelated series of statements made to her which

she construed to contain bias towards her on the basis of

30a

her sex and age.“ The only ineident which even argu-

ably would suggest a policy of continuing diserimination

towards plaintiff was a conversation with her supervisor,

Ms. Walsh, who allegedly told Smith that she would never

leave LR. Walsh credibly denied making this statement,

Higgins later told plaintiff that she could possibly trans-

fer, and subsequent events demonstrated that the NLRB

did not have a policy of keeping Smith in LR. Indeed,

if anything, the supervisory officials, Higgins and Data,

made a continuing effort to obtain a transfer for plain-

tiff, even to the point of incurring a union grievance as

a result of this policy.

The events which operated to keep Smith from ob-

taining a transfer were not a “related series.” She was

given a number of details in the hope that the details

would become transfers. Yet the independent evalua-

tion of the supervisors of each detail was that her work

was not of the kind that they wanted permanently on

their staff. Plaintiff did not charge any of those super-

visors or the attorneys who directly supervised her work

on these details with discrimination. Moreover, each

transfer decision resulted from an independent evalua-

tion by the selecting official. The acts were related in

that they all involved Smith, but they did not demon-

strate a policy of discriminating against her because of

16 The plaintiff’s recounting of those statements was uncorrobo-

rated by any other evidence and was in all cases refuted by the

defendant. However, assuming that certain of these incidents

indeed took place, for instance, the statement attributed to Kobell

that women Smith’s age should not work in the field, plaintiff

would have had reasonable cause to suspect discrimination and to

go to a EEO counsellor. She did not do so within 30 days of any

of the events she recounts. This situation is further reason for

not allowing her to preceed with her case on those events occurring

before November 15, 1980. In view of the aggressive manner in

which Smith consistently pursued her career goals, it is unlikely

that she would have allowed statements which she regarded as

manifesting discrimination to pass without pursuing EEO remedies.

31a

age or sex. Indeed, other women over fifty have trans-

ferred to field offices.

B. Plaintiff's Title VII Claim.

To prevail under Title VII, plaintiff must establish

that the defendants violated 42 U.S.C. § 2000e-2(a) (1),

which provides: “It shall be an unlawful employment

practice for an employer (1) to fail or refuse to hire or

to discharge any individual, or otherwise.to discriminate

against any individual with respect_to his compensation,

terms, conditions, or privileges of employment, because of

such individual’s . . . sex.“ The standards for determin-

ing whether a defendant accused of discriminatory treat-

ment has violated Title VII have been set out in Texas

Department of Community Affairs v. Burdine (Burdine),

450 U.S. 248, 252-56 (1981); Board of Trustces v.

Sweeney, 439 U.S. 24, 24-25 (1978); Furnco Construc-

tion Corp. v. Waters, 438 U.S. 567, 575 (1978); and

McDonnell Douglas-Corp. v. Green (McDonnell Douglas),

411 U.S. 792, 802-05 (1973). These cases require that a

plaintiff first make out a prima facie case of discrimi-

nation. The burden of going forward with evidence then

shifts to the defendant to articulate some legitimate,

nondiscriminatory reason for the employment action

taken. Finally, the plaintiff has the burden of showing

that the defendant’s stated reasons for its actions were

a pretext for discrimination. Burdine, supra, 450 U.S. at

252-58; McDonnell Douglas, supra, 411 U.S. at 802-05.

The ultimate burden of persuading the trier of fact that

the defendant intentionally discriminated remains at all

times with the plaintiff. Burdine, supra, 450 U.S. at

253.

Plaintiff has barely carried her burden of establishing

a prima facie case of sex discrimination. She has shown

that she applied and was at least marginally qualified for

J (

8 Fe. EAA E 8

en OD EN oC ey oe PP ae

82a

five transfers and that she was rejected for these trans-

fers in favor of men.” Plaintiff’s evaluations demon-

strate that her work was satisfactory, even if not out-

standing. She need not prove for the purpose of her

prima facie case that she was as qualified or more quali-

fied than those who were transferred. Aikens v. United

States Postal Service, 665 F.2d 1057, 1059 (D.C. Cir.

1981), cert. granted, 102 S. Ct. 1707 (1982). Moreover,

the plaintiff need not show discriminatory motive, but

only such facts from which the court can infer discrimi-

natory animus. Furnco Construction Corp. v. Waters,

supra, 438 U.S. at 579-80.

On the other hand, the defendant has met his burden

of rebutting the inference of discriminatory animus by

producing evidence that plaintiff lacked the legal analysis

and legal writing skills necessary for a field transfer.

Moreover, he showed that plaintiff had failed, during her

detail to the Philadelphia office, to demonstrate profl-

17 The transfers of Metscher, Kang, Posner, Ellison, and R. M.

Smith. Obviously, plaintiff has no claim of sex discrimination as

to the Levin, Watson, or Nelson transfers, since the selectees were

also women.

18 Plaintiff has tailed to make out a prime facie case that she

repeatedly admitted that she either did not claim that her evalu-

ators had discriminated against her or had no evidence of dis-

other hand, Smith’s testimony about the Mirsky evaluation was not

credible. The Court has reviewed all the evaluations in evidence and

concludes that the evaluations plaintiff challenges are no worse than

those she does not challenge and that the women employees of the

agency received evaluations that were comparable to those which

men received.

83a

ciency at field work. He also demonstrated that those

employees who were selected for transfer either had

stronger writing and analytical skills than plaintiff or

had performed successfully on field details. Finally and

most importantly, the defendant showed conclusively that

persistent efforts were made to find a suitable position

for plaintiff outside LR. The special treatment that

plaintiff received was an attempt to help her and was

not part of an attempt to discriminate against her.

The plaintiff utterly failed to carry her burden of dem-

onstrating that the articulated reasons for not transfer-

ring her were pretexts for discrimination. She offered

no credible statistics on the question of sex discrimina-

tion, and any irregularities in the evaluation or transfer

processes were too minor to cast a cloud of doubt on the

defendant’s articulated reasons for not selecting Smith.

While both the transfer and the evaluation processes

were highly subjective and hence subject to close scru-

tiny by the Court, plaintiff has failed to show that dis-

criminatory results occurred. See Alexander v. Gardner-

Denver Co., 519 F.2d 503, 506 (10th Cir. 1975), cert.

denied, 423 U.S. 1058 (1976). Women were selected for

three of the eight transfers at issue in this case, and

some of those women received glowing evaluations. Plain-

tiff’s lack of success is solely attributable to the absence

of the qualities that would have entitled her to a trans-

fer. In sum, plaintiff has failed to prove that she was

discriminated against on the basis of her sex.

B. The ADEA Claim.

Pursuant to 29 U.S.C. § 623(a) (1), it is unlawful for

an employer “to fail or refuse to hire or to discharge

any individual or otherwise discriminate against any in-

dividual with respect to his compensation, terms, condi-

tions, or privileges of employment, because of such in-

dividual’s age.” The courts have generally the

case law developed under Title VII in AD cases.

tires Uae odie

34a

Sutton v. Atlantic Richfield Co., 646 F.2d 407, 411-12

(9th Cir. 1981); Loeb v. Textron, Inc., 600 F.2d 1003,

1014-15 (Ist Cir. 1979) ; Hodgson v. First Federal Sav-

ings & Loan Ass’n, 455 F.2d 818, 822 (5th Cir. 1972);

Murname v. American Airlines, Inc., 482 F. Supp. 135

(D. D.C. 1979), aff'd, 667 F.2d 98 (1981), cert. denied,

102 S. Ct. 1770 (1982). Consequently, the steps of prov-

ing an ADEA case, like those of a Title VII case, con-

sist of the prima facie case, the articulation of a non-

discriminatory reason for the decision, and the showing

of pretext. Wilson v. Sealtest Fords Division, 501 F.2d

84, 86 (5th Cir. 1974). Because of this similarity be-

tween the proof of plaintiff’s Title VII claim and her

ADEA claim, the Court, in the interest of avoiding rep-

etition, will not repeat what is set out above. Certain

slight differences in the evidence on the two claims must

be pointed out because the ADEA claim goes to all eight

of the transfers in question, not just the five that were

given to the men.

Plaintiff made out a prima facie case under the ADEA.

She is within the protected age group, was the victim of

an adverse personnel action, was doing satisfactory work,

and was not selected for transfers even though younger

persons were. This gives rise to an inference that she

was a victim of discrimination. Indeed, plaintiff’s prima

facie case of discrimination under ADEA is stronger

than her Title VII claim because she showed that no

attorney over 50 years of age and eligible for transfer

was selected for a field office during the period in

question.

The defendant’s legitimate nondiscriminatory reason

for not selecting plaintiff for the transfers at issue is

the same for the ADEA claim as it was for the Title

VII claim, and it is no less convincing in the age dis-

crimination context than it was in the consideration of

sex discrimination—plaintiff failed to demonstrate ade-

quate legal skill in analysis and writing and did not dis-

tinguish herself on her detail to Philadelpiha.

Nn * a 4 .

35a

Plaintiff failed to show that the defendant's stated rea-

son for not transferring her was a pretext for age dis-

erimination; indeed, she failed to show that age was

even a factor in determining whether she could be trans-

ferred. See Cannistra v. FAA, 20 E. P. D. § 30,143 (D.

D.C. 1979). While no person over 50 years of age was

transferred to a field office during the period in ques-

tion, that fact alone is not enough show pretext.” On

the other hand, defendant offered statistics, Defendant’s

Exh. LL, which, while not conclusive of the question

whether applicants over 50 were being rejected more

often than the others.“ did indicate that because of the

nature of the selection process (applicants were on more

than one transfer register, no older applicants were on

some registers, and plaintiff was present on a large num-

ber of transfer registers) and the small total number of

selections, no valid statistical conclusions can be drawn

from the selection process. Consequently, she has not

shown that defendant discriminated against older per-

sons as a class in the transfer process. This means that

plaintiff must rely on other, more direct evidence of pre-

text. She has offered none, and consequently has —

to prove her case.**

10 Her only evidence that this factor was consid. red was the

statement she attributed to Gerald Kobell. Her testimony on this

subject was not credible.

2° Plaintiff's evidence did not show whether any persons, other

than herself, over the age of 50 were even on the transfer registers

during the relevant period.

21 The statistics defined older applicants as those over 40, not

those over 50. The Court is willing to accept plaintiff's definition

of the protected class, but notes that this definition makes\stutistical

proof even more impossible. This may explain why plai offered

no statistical proof of her own.

22 Because plaintiff failed to show that she was entitled to a

transfer to the field, she cannot be qualified for a field promotion

even were

to GS-14. Moreover, assuming she for a trans-

fer, the earliest date she could have been would have

. *

eae 8 4

ae <p hii

Oe ee erat, ea nm

36a

C. The Evaluations.

The Court of Appeals for this circuit has recognized

that a Title VII plaintiff has a right to have appraisals

in his or her personnel files removed if those appraisal

were the result of discrimination or in reprisal of EEOC

activities. Stoller v. Marsh, No. 81-1721, slip op. at 10-13

(D.C. Cir. June 22, 1982); Smith v. Secretary of the

Navy, 659 F.2d 1118, 1118 (D.C. Cir. 1981). Plaintiff

contends that several of the evaluations in her file fall

under this doctrine, but she has shown neither that the

appraisals were the result of discrimination nor, as in

Smith, constitute reprisal for EEOC activities. The

Weinbrecht and Weiser evaluations were left in the file

to present a complete picture of plaintiff’s performance,

and the Court finds nothing improper, much less dis-

criminatory, in this process. Plaintiff claims that the

NLRB’s use of the Mirsky appraisal violated the collec-

tive bargaining agreement, but her testimony on this

point was not credible. Similarly, the Court finds no

merit in plaintiff’s vague allegations about the evaluation

by Jane Clark. There is perhaps some merit in the claim

that the summary of Smith’s career compiled by Datz

at Higgins’ request was improperly, if accidentally, in

Smith’s file. However, this document was not compiled

with discriminatory animus and was not placed in her

file in retaliation for EEO activities; indeed, it was com-

piled before Smith even approached an EEO counsellor.

Moreover, this document was not relied upon in denying

any of the transfer requests at issue in this case. Con-

sequently, the plaintiff's evaluation claim is not cogniz-

able under Title VII or the ADEA. The Court will or-

der no relief in this matter.

been November 15, 1980. Since it takes approximately two years,

Trans. Vol. III, at 39-40 (Stack), for a field attorney to quality

for promotion to expert status, she would not, in any event,

entitled to promotion at this point in time.

Date: July 30th 1982

87a

CONCLUSION

The plaintiff has failed to prove that defendant dis-

criminated against her because of sex and age. Indeed,

the saga of Florence Smith demonstrates that an agency’s

special efforts to find the right niche for its employees

can sometimes cause more problems than would be caused

by no effort at all. Tide VI and the ADEA are not

all purpose remedies to cure every dissatisfaction ex-

perienced by employees. In some instances, there is no

way to alleviate every frustration, experienced in the

work place, and while the Court may sympathize with

Ms. Smith’s frustration, it cannot, under either Title VII

or the ADEA, do anything to remedy the situation. Her

real problem is not discrimination but the qualifications

of those who were selected instead of her.

s, Oliver Gasch

Judge

[OLIVER GASCH]

38a

APPENDIX G

UNITED STATES COURT OF APPEALS

FOR THE DISTRICT OF COLUMBIA

Civil Action No. 81-1747

FLORENCE C. SMITH,

Plaintiff,

WILLIAM A. LUBBERS, General Counsel,

National Labor Relations Board,

Defendant.

Filed Jul. 30, 1982]

ORDER

Upon consideration of the evidence adduced at trial,

the proposed findings of fact and conclusions of law sub-

mitted by counsel, and the entire record herein, and for

the reasons set out in the accompanying memorandum,

it is by the Court this 30th day of July, 1982

ORDERED that judgment in this case be, and hereby

is, entered for defendant and against plaintiff.

2 /s/ Oliver Gasch

2 Judge

a [OLIVER GascH]

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.