645 F.2d 1070 (D.C. Cir. 1981), 79-2151, Milton v. Weinberger

Docket Nº:79-2151.
Citation:645 F.2d 1070
Party Name:Dorothy L. MILTON, Eleanor S. Whelan, Appellants, v. Caspar W. WEINBERGER, Secretary of Defense et al.
Case Date:March 04, 1981
Court:United States Courts of Appeals, Court of Appeals for the District of Columbia Circuit

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645 F.2d 1070 (D.C. Cir. 1981)

Dorothy L. MILTON, Eleanor S. Whelan, Appellants,


Caspar W. WEINBERGER, Secretary of Defense et al.

No. 79-2151.

United States Court of Appeals, District of Columbia Circuit

March 4, 1981

Argued Nov. 21, 1980.

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Appeal from the United States District Court for the District of Columbia (D.C. Civil No. 78-1169).

Frances B. Aubrey, Washington, D. C., for appellants.

Robert B. Amidon, Asst. U. S. Atty., with whom Charles F. C. Ruff, U. S. Atty., John A. Terry, John R. Fisher and Diane M. Sullivan, Asst. U. S. Attys., Washington, D. C., were on brief, for appellees.

Before McGOWAN, Chief Judge, and EDWARDS and GINSBURG, Circuit Judges.

Opinion for the Court filed by Circuit Judge EDWARDS.

EDWARDS, Circuit Judge:

In this case appellants Milton and Whelan seek review of a judgment of the District Court denying their claims for relief under Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e-16 (1976), on charges of unlawful sex discrimination with respect to job promotions. After a full trial on the merits, the District Court found that appellants' claims were "time-barred" as to four of the six job vacancies at issue, because those claims had not been filed until after the applicable limitation period had run. The District Court also rejected the claims of discrimination regarding the two remaining job vacancies, both of which involved timely complaints, finding that the appellees had "met their burden ... of establishing that neither plaintiff would have been selected for the two vacancies even in the absence of sex discrimination."

For the reasons set forth below, we affirm the judgment of the District Court with respect to the four claims found to be time-barred and with respect to one of the two other claims. However, as to the sixth claim, which was timely filed, we reverse

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the trial court's decision, holding that the reason identified by the court for not promoting the appellants was not a legitimate non-discriminatory reason. Consequently, we remand the case to the District Court for a determination as to whether a legitimate reason exists on the present record, and, if not, to frame appropriate relief.


Appellants Dorothy Milton and Eleanor Whelan were employed at the Cameron Station of the Defense Logistics Agency (DLA) of the Department of Defense in 1967. By 1971 each woman held the position of Equal Employment Opportunity Officer at grade GS-13. Between 1972 and 1977 each woman applied for several promotions to GS-14 positions. Although in each instance both women were found qualified for the sought-after promotion, on every occasion a man was selected for the job. 1 Consequently, neither appellant has been promoted since 1971. 2

The selection procedure for awarding promotions in the DLA consisted of two steps. As the trial court explained, qualified applicants were

rated according to their formal credentials and their proficiency in job-related functions. Subsequently, the top-rated applicants were identified and then interviewed by the selecting official for ultimate selection. This official would have had nothing to do with either the initial ratings of the applicants or the selection of the top group of three to eight applicants from which he was required to make a selection.

Memorandum Opinion, reprinted in J.A. at 17a.

The appellants alleged six specific acts of discrimination. The first four took place between 1972 and February 1975, during which period each appellant applied and was found "qualified" for four promotions within the Defense Logistics Agency. 3 For each opening, Whelan was among the top-rated applicants interviewed by the selecting official; Milton was interviewed for only one of the four positions. 4 Although neither of the appellants, nor any female applicant, was ultimately awarded any of these positions, 5 neither appellant filed an informal complaint of discrimination within thirty days following the selection of a male applicant for each position. 6

In August 1975, Milton sought advancement for the fifth time, applying for a

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promotion advertised as JOA 275. She was rated within the top five applicants, 7 and interviewed by the selecting official. Whelan did not apply for JOA 275; she felt that her application would be futile since General Simon, who had disapproved her selection for JOA 298, see note 5, supra, still had responsibility for approving promotions. A male applicant was chosen to fill JOA 275.

Following the rejection of Milton's application for JOA 275, Milton and Whelan filed with the DLA an informal complaint of sex discrimination. In an attempt to resolve the dispute, the DLA proposed to give them each a "priority consideration letter." After accepting this resolution of their complaint, 8 the appellants applied for JOA 22. Although each was found qualified, neither rated high enough to be placed on the final list of applicants to be interviewed. After a male was selected for the position, Milton and Whelan filed another charge of sex discrimination with the DLA.


The appellants' case was fully tried without a jury. 9 In its Memorandum Opinion the District Court found that the appellants had "presented at trial a prima facie case creating an inference of sex discrimination," Memorandum Opinion, reprinted in J.A. at 14a, and concluded, among other things, that the appellants "have each been fully qualified by length of service and outstanding performance to be promoted to GS-14." Id. at 15a. Calling attention to "the fact that a substantial number of women have consistently been employed at the GS-13 level in the headquarters or field offices of DLA, (but that) no woman has ever been selected in these locations for promotion to GS-14," id., the court characterized the appellants as presenting an "extremely strong prima facie showing." Id.

Following Furnco Construction Corp. v. Waters, 438 U.S. 567, 98 S.Ct. 2943, 57 L.Ed.2d 957 (1978), the court concluded that the burden had shifted to the appellees to demonstrate "that all the allegedly illegal employment decisions were based on legitimate nondiscriminatory considerations." Memorandum Opinion, reprinted in J.A. at 15a. The court noted that, since "(n)o claim for injunctive relief ... is advanced," the Government "relies primarily on the proposition that, regardless of whether or not the defendants could be found to have discriminated on the basis of sex, plaintiffs are not entitled to the relief they request." Id. Accepting this proposition, the District Court embraced the standard announced in Day v. Matthews, 530 F.2d 1083 (D.C. Cir. 1976), requiring "clear and convincing evidence that, even absent the alleged discrimination, neither plaintiff would have been selected for the jobs under review." Memorandum Opinion, reprinted in J.A. at 15.

In considering the specific vacancies at issue, the District Court found that it need

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not consider any of the appellants' claims associated with the first four job openings JOA 187, 139, 298, and 70 since in those instances the appellants had failed to file a timely complaint of sex discrimination, as required by 5 C.F.R. § 713.214(a)(1)(i) (1977) (redesignated as 29 C.F.R. § 1613.214(a)(1)(i) (1979)). See note 6, supra. Quoting United Air Lines, Inc. v. Evans, 431 U.S. 553, 558, 97 S.Ct. 1885, 1889, 52 L.Ed.2d 571 (1977), the trial court observed that "(a) discriminatory act which is not made the basis for a timely charge ... is merely an unfortunate event in history which has no present legal consequences." Memorandum Opinion, reprinted in J.A. at 16a.

Turning to one of the remaining two claims, the trial court determined that the appellees had given a sufficient reason for the appellants' rejections in JOA 275. Since Milton rated below the candidate chosen, and Whelan, had she even applied, "would in all likelihood have been rated below the selectee," Memorandum Opinion, reprinted in J.A. at 17a, the District Court found that the evidence was "clear and convincing" that neither appellant was the best qualified for the promotion. 10 In other words, the District Court found that the appellants legitimately could be rejected because they did not rank, in the first stage of the selection process, as high as the applicant ultimately selected, even though they had ranked in the top group of applicants to be interviewed. Consequently, the court concluded that the appellees had met their burden under Furnco and Day.

Finally, the court reasoned that the last claim, involving JOA 22, should be rejected because neither applicant had rated high enough to place in the group of candidates selected for interviews. Because the appellants did not challenge the rating system, and because the priority consideration letter could not "abrogate the normal selection procedure should plaintiffs fail even to qualify for the top group from which the selection was to be made," Memorandum Opinion, reprinted in J.A. at 20a, the trial court concluded that, "neither plaintiff would have been selected for (JOA 22) even in the absence of sex discrimination." Id. at 20a-21a. 11


In seeking review of the District Court's decision, the appellants first argue that the trial judge erred in ruling that their claims regarding the first four promotions JOA 187, 139, 298, and 70 were time-barred because they had not filed timely administrative complaints. The appellants do not dispute that their first informal administrative complaints were filed more than thirty days after a male had been selected for each of the job openings, and that such a late filing normally would bar their claims regarding those promotions. 12 Rather, the appellants contend that strict application of the time limits set forth in the Code of Federal Regulations is not appropriate since the appellees...

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