forbid use of the subjective extrinsic evidence related by Supervisor DiNovi.
Marshal Rapone testified that when DiNovi and Campbell completed their ratings, he certified the top 14 scores (2 for each available slot, as required by Headquarter guidelines) without checking any of the scoring done by the Supervisors. Marshal Rapone, as the Marshal for the Eastern District of Pennsylvania had a duty to exercise some control over the delegated tasks.
The failure to promote plaintiff in the fall of 1984 was another retaliatory act resulting from the plaintiff's complaints of sexual discrimination and retaliation.
In June 1985 plaintiff reapplied for the same GS-11 position when two more positions became available. The same supervisors used the same form and again plaintiff did not receive the promotion because of retaliation.
I must note, however, some disturbing problems presented by both parties.
Thoughout the litany of retaliatory incidents, one name crops up time and again -- George Campbell. Campbell was involved in the initial incident regarding administrative leave, the cell block incidents, he wrote the first reprimand, and it was on his unchallenged recommendation that plaintiff, Cox and Newman were transferred. Campbell has since retired from the United States Marshal Service. However, he lives in Bensalem, Pennsylvania, and yet neither party sought to have him testify. This absence leaves a peculiar void in the testimony. Even from the slim evidence presented on Campbell however, I am able to infer that Campbell's actions were retaliatory in nature, and that his continuing influence and control over plaintiff's job opportunities pursued her throughout his tenure.
Moreover, although plaintiff ably discredited the application process using her own application as an example, she had at her disposal the applications and rating scores for at least all of the successful applicants. (Summary of these scores was Exhibit P-17, prepared by defendant).
Nevertheless plaintiff did not make any attempt to show affirmatively that her application, if judged objectively, would have resulted in a qualifying score. For example, she could have used the other applications to compare them with her own application, yet she did so only for one small section of one other application.
As a result, I am left with a subjectively administered test which, in plaintiff's case, as a result of retaliatory acts, prevented her from receiving a promotion. Because plaintiff has not affirmatively shown that she is qualified by comparing successful applications with her own, or by an expert witness qualified to evaluate a Deputy Marshal's performance, I do not feel justified in promoting plaintiff automatically to a GS-11 Criminal Investigator position, since to do so would be speculative. In order to resolve this dilemma and to serve the interests of justice, I will order that plaintiff receive an evaluation by a qualified rater from Headquarters in Washington, D.C. -- someone who is completely objective and not personally familiar with plaintiff -- to reevaluate her 1985 application with any updated information.
CONCLUSIONS OF LAW
Plaintiff in this action is a female Deputy United States Marshal employed by the United States Marshal Service. She has brought suit under Title VII claiming that the United States Marshal Service discriminated against her on the basis of her sex in assignments, transfers, promotions, training, and discipline, and retaliated against her for pursuing or engaging in protected activities.
The exclusive and preemptive remedy for claims of employment discrimination within the federal government by a federal employee is section 717 of the Civil Rights Act (Title VII), 42 U.S.C. § 2000e-16. Brown v. General Services Administration, 425 U.S. 820, 835, 48 L. Ed. 2d 402, 96 S. Ct. 1961 (1976).
Under Title VII, the plaintiff first must establish a prima facie case, whereupon the burden of production shifts to defendant to articulate legitimate, nondiscriminatory reasons for his actions. Upon such a showing, the burden of production then shifts back to plaintiff to show that defendant's reasons are pretextual and the true motives illegal. See, e.g., McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802-05, 36 L. Ed. 2d 668, 93 S. Ct. 1817 (1973). The burden of persuasion remains on the plaintiff, even though the burden of production may shift to the defendant.
Under Title VII, plaintiff alleges she was a victim of (1) sexual discrimination and (2) retaliation for having filed EEO charges.
To prove her claim that any or all of the nine incidents amount to sex discrimination in violation of Title VII, plaintiff has the burden of proving, inter alia, that the Marshals Service's articulated reasons are pretextual and that the real reason for each was discrimination because of plaintiff's gender. See McDonnell Douglas Corp. v. Green, 411 U.S. at 802-05.
Defendant articulated legitimate nondiscriminatory reasons for each allegation of sex discrimination, and plaintiff did not show these decisions were a pretext in that they were based on sex discrimination.
Therefore plaintiff has failed to prove disparate treatment based on her gender.
To prove her retaliation claim, plaintiff has the burden of proving (1) that she engaged in protected activity, which was known by the alleged retaliator; (2) that an adverse action was taken against her; and (3) that there was a causal connection between the protected activity and the retaliation. See, e.g., Wrighten v. Metropolitan Hospitals, Inc., 726 F.2d 1346, 1354 (9th Cir. 1985).
If plaintiff can establish a prima facie case, "the burden of production shifts to the defendant employer to articulate some legitimate, non-retaliatory reason for the adverse action." Wrighten, 726 F.2d at 1354.
If defendant meets that burden, plaintiff "must then show that the asserted reason was a pretext for retaliation." See Cohen v. Fred Meyer, 686 F.2d 793, 796 (9th Cir. 1982).
Throughout this evidentiary process, plaintiff always has the burden of persuasion on the issue of whether defendant intentionally retaliated against her for having engaged in protected activity.
With respect to each of the nine alleged discriminatory incidents, to show the requisite causal connection, plaintiff must present sufficient evidence to raise the inference that her protected activity (i.e., the filing of her October 1984 and November 1984 EEO complaints) was the likely reason for these adverse actions. See Cohen v. Fred Meyer, Inc., 686 F.2d at 796.
With the exception of the issue of transportation assignments, plaintiff established that the remaining alleged incidents were retaliatory in nature, caused by plaintiff's EEO complaints, her responses under oath during an internal investigation, and the filing of her federal complaint.
Defendant's rebuttal of plaintiff's prima facie case did not ring true in light of the number, timing and context of the incidents.
I therefore find that defendant's explanations were a pretext for the retaliatory actions and that plaintiff has prevailed on her Title VII case of retaliatory discrimination in the enumerated areas.
However, for reasons articulated in my findings of fact, I will not order plaintiff to be promoted nor that she receive any claimed loss of overtime for the period she was placed in the civil squad.
Instead, I will order that plaintiff be re-evaluated by a qualified rater from the USMS Headquarters in Washington, D.C. The rater should be completely objective and should not personally know plaintiff. Further I will award plaintiff damages in the amount of $ 129.28, the amount she would have received had she not been removed from the special duty detail.
Plaintiff also claims that "defendant's actions are all part of a pattern and practice of sexual discrimination within the United States Marshal Service, as demonstrated by its failure to hire, promote and place women in higher-paying positions of importance." Complaint para. 28. The Supreme Court has made clear that generally, under a "pattern and practice" theory, the plaintiff must prove illegal discrimination against the class he or she claims to represent. International Brotherhood of Teamsters v. United States, 431 U.S. 324, 335, 52 L. Ed. 2d 396, 97 S. Ct. 1843 (1977). To do so, plaintiff must prove that alleged differences in treatment between plaintiff, the only woman deputy in the Eastern District of Pennsylvania during the relevant time periods, and other male deputies employed in the district are sexually premised. Teamsters, 431 U.S. at 335; Presseisen v. Swarthmore College, 442 F. Supp. 593, 599 (E.D. Pa. 1977), aff'd, 582 F.2d 1275 (3d Cir. 1978).
In addition, plaintiff alleges a system-wide pattern or practice of resistance to Title VII rights within the United States Marshal Service. To prove this claim she must show by a preponderance of the evidence that (1) a pattern or practice of disparate treatment exists, and (2) the pattern or practice of differential treatment is the defendant's regular and standard operating procedure. See Presseisen, 442 F. Supp. at 599.
Plaintiff failed to present any evidence at trial in support of these two claims and as such they must fall.