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GEMMELL v. MEESE

June 24, 1986

MARGARET M. GEMMELL
v.
EDWIN MEESE, III



The opinion of the court was delivered by: NEWCOMER

 NEWCOMER, J.

 Plaintiff, Deputy United States Marshal Margaret Gemmell (DUSM Gemmell), an employee of the United States Marshal Service (USMS), brought this suit against her employer under Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. § 2000e-16, alleging sex discrimination and retaliation for her decision to pursue her sex discrimination claims. *fn1"

 After careful consideration of the testimony and the documentary evidence, the Court has determined that judgment should be entered in favor of plaintiff and against defendant on her retaliatory claims only. She failed to sustain her burden of proving individual or systemic sex discrimination.

 The following constitute my findings of fact and conclusions of law.

 Plaintiff Margaret M. Gemmell is a female Deputy United States Marshal employed by the United States Marshals Service in the Eastern District of Pennsylvania.

 Defendant Edwin Meese is the head of the Justice Department, and the USMS is part of the Justice Department. As such, Meese is the sole proper defendant for plaintiff, a federal employee, to sue under Title VII. 42 U.S.C. § 2000e-16(c).

 In August of 1979 plaintiff began her employment as a Deputy United States Marshal at the GS-5 level with the USMS in the Southern District of Ohio. After working in the Southern District of Ohio for two years, plaintiff transfered to the USMS in the Eastern District of Pennsylvania in July of 1981 as a result of a hardship (death in the family). Plaintiff has been continuously employed in this district through the present time.

 When plaintiff first arrived in the Eastern District of Pennsylvania, the United States Marshal was Edward D. Schaeffer. Plaintiff experienced no professional problems while Marshal Schaeffer was head of the USMS of the Eastern District of Pennsylvania.

 In November of 1983, Thomas C. Rapone replaced Marshal Schaeffer as the United States Marshal in the Eastern District of Pennsylvania.

 The USMS in the Eastern District of Pennsylvania is divided into three primary squads: the Criminal, Civil and Warrant Squads. From July 1981 through July 31, 1984, plaintiff was assigned to the Criminal Squad where she remained for three years providing courtroom, prisoner and witness protection for the federal district courts. Plaintiff's immediate supervisor while assigned to the Criminal Squad was George W. Campbell.

 In July of 1984, plaintiff, in response to an invitation, attended a conference in Washington, D.C. on Women in Law Enforcement. Plaintiff sought -- and received -- permission to take annual leave for the day. At the conference plaintiff was told by other conferees as well as the EEO Officer in Washington, D.C. (Kipling Williams) that plaintiff was entitled to administrative leave for the conference, in lieu of annual leave. All save one of the conference attendees had received permission for an administrative leave day.

 A grant of administrative leave would usually result in time off with pay for job-related activity, and would not affect the plaintiff's accrued vacation time (annual leave).

 Upon returning to the Eastern District of Pennsylvania the next day, plaintiff related the information she had received at the conference regarding administrative leave to her supervisor, George Campbell. Supervisor Campbell refused to grant her administrative leave, believing plaintiff was not entitled to administrative leave because she asked for it after the conference, and so he refused to sign the proffered substitute slip.

 Plaintiff and Supervisor Campbell exchanged some angry words at that time.

 Immediately after leaving Campbell's office plaintiff went to call Kip Williams, the Washington D.C. EEO Officer, to see if he would clear up the problem, and to relate her concern that this refusal was a form of sex discrimination. Finding all of the telephones in the squad room were busy, plaintiff went to the cell block to place the call. Plaintiff did so knowing that United States Marshal Rapone had previously issued an anti-loitering policy prohibiting Deputy United States Marshals from "hanging out" in the cell block area if they did not have official business in the cell block area. The Marshal had issued the policy for security reasons. Plaintiff had never seen anyone reprimanded for violation of the policy although she had observed, and continues to observe, Deputy United States Marshals (all of whom are male) violating the policy within the view of supervisors.

 Supervisor Campbell, following plaintiff to the cell block, loudly chastised her for being in the area while not on cell block duty nor assigned to process a prisoner in there. Campbell refused to listen to plaintiff's explanation.

 On July 24, 1984 plaintiff again entered the cell block area, this time to get a newspaper from another Deputy United States Marshal. Campbell saw plaintiff in the cell block area, ordered her out of the area in a loud voice, and once again, the two exchanged angry words.

 The next day, July 25, 1984, Campbell issued to plaintiff an informal reprimand for her unauthorized presence in the cell block. The informal reprimand was never permanently placed in plaintiff's file, and eventually was removed even from the district file, in October 1984, during conciliation discussions among Marshal Rapone, plaintiff and an EEO Officer. Marshal Rapone never knew precisely why plaintiff had been disciplined, only what Campbell's informal reprimand noted (plaintiff's unauthorized presence in the cell block area twice). Nonetheless, he testified that he removed the reprimand because it had "served its purpose."

 In August 1984 plaintiff initiated the EEO grievance procedure, followed later by a formal complaint, an amended formal complaint, and acceptance by the EEOC of issues to investigate. (See Exhibits P-9 through P-13).

 Thereafter plaintiff filed a timely complaint in federal court.

 Following the initial claim of sex discrimination, the remainder of plaintiff's claims are based, at least in part, on claims of retaliation. Under the facts as presented during trial, construed liberally these claims are such that an administrative investigation which could reasonably be expected to grow out of the initial charges of discrimination would include the entire litany in the complaint. See Ostapowicz v. Johnson, 541 F.2d 394 (3d Cir. 1976), cert. denied, 429 U.S. 1041, 50 L. Ed. 2d 753, 97 S. Ct. 741 (1977).

 Deputy Gemmell subsequently learned that Kipling Williams was mistaken about her entitlement to administrative leave for the Washington, D.C. conference. Nonetheless, plaintiff's filing of the EEO complaint was reasonably based upon her belief that she had been the victim of sex discrimination, and that when she attempted to pursue her right to an EEO investigation of the incident, she became the victim of a series of retaliatory acts.

 Plaintiff alleged a series of retaliatory incidents. I find that with the exception of one alleged incident (regarding use of female clerks for transportation of female prisoners) the remainder of the acts were retaliatory acts in response to plaintiff's initial EEO grievance, her mandated testimony during an ...


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