Palmer v. Shultz
| Citation | 662 F. Supp. 1551 |
| Decision Date | 02 July 1987 |
| Docket Number | Civ. A. No. 76-1439,77-2006. |
| Parties | Alison PALMER, et al., Plaintiffs, v. George P. SHULTZ, Defendant. Marguerite COOPER, et al., Plaintiffs, v. George P. SHULTZ, Defendant. |
| Court | U.S. District Court — District of Columbia |
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Ellen K. Wayne, Karen Edgecombe, Terris, Edgecombe, Hecker & Wayne, Washington, D.C., for plaintiffs.
Stuart Newberger, Asst. U.S. Atty., Washington, D.C., for defendant.
These consolidated cases involve a class action filed against the Department of State alleging sexual discriminatory practices against female Foreign Service Officers (FSO's) and FSO applicants in various aspects of employment in violation of Title VII of the Civil Rights Act of 1964, as amended in 1972 to cover employment discrimination in the federal government. See 42 U.S.C. § 2000e et seq. The plaintiff class is composed of all female FSO's employed by the Department of State at any time since February 4, 1976 and all female applicants to become FSO's since February 4, 1976.1 The individual plaintiffs are Alison Palmer, Mary A. Ryan, Ellen Shippy, Marguerite Cooper, Mary Lee Garrison, Mary Finrow, Laurel Cooper, Mary Hartman, and Julie Ann McGrath.
In particular, the plaintiffs alleged sexual discriminatory practices in: (1) hiring, (2) assignments, (3) promotions, (4) performance evaluations, (5) awards, and (6) class at hire. Plaintiffs' hiring claims were settled prior to trial.2 Trial on the remaining claims was bifurcated into liability and remedy phases. Following the liability phase of the trial, the District Court entered judgment for the defendant and dismissed the plaintiffs' remaining claims on the ground that no unlawful discrimination had occurred. Palmer v. Shultz, 616 F.Supp. 1540, 1561 (D.D.C.1985).
The plaintiffs appealed the District Court's decision on seven Department of State personnel practices challenged at trial: (1) promotions from class 5 to class 4, (2) "potential" evaluations, (3) "out-of-cone" assignments, (4) "stretch" and "down-stretch" assignments, (5) Deputy Chief of Mission assignments, (6) Superior Honor Awards, and (7) "initial cone" assignments. In March 1987, the Court of Appeals reversed this Court's decision on these issues and remanded for further proceedings based on the existing record. Palmer v. Shultz, 815 F.2d 84 (D.C.Cir. 1987).
Therefore, upon consideration of the entire record herein and in accordance with the Court of Appeals March 1987 opinion, the Court enters the following findings of fact and conclusions of law regarding the seven personnel issues raised on appeal.
1. The Foreign Service of the United States is charged with assisting "the President and the Secretary of State in conducting the foreign affairs of the United States." 22 U.S.C. § 3901(a)(1), § 3904.
2. The Foreign Service is administered by the Secretary of State under the direction of the President. 22 U.S.C. § 3921(a).
3. While performing its many varied duties through the world, the Foreign Service is responsible for maintaining the best possible relations with the government to which accredited.
4. Prior to the 1960's, FSO's were hired as generalists although many but not all developed a field of specialization later in their careers. In the early 1960's, the Department decided that Foreign Service Officers should be selected for hire into a particular cone, that is, functional field of specialization, while continuing to be required to show a generalist aptitude because the generalist selection method had resulted in a surplus of political and political/economic officers and an insufficient number of officers in the other fields. In addition, management believed that more specialized expertise was required to meet the increasingly complex demands placed on the FSO corps.
5. Four "cones" of specialization were established:
(a) Administrative officers are responsible for support operations of U.S. embassies and consulates.
(b) Consular officers work closely with the public providing assistance to American travelers and residents abroad, issuing visas, and other immigration related issues.
(c) Economic officers deal with economic issues that impact on U.S. interests, including trade, energy, aviation, and maritime matters. These officers perform their duties by both gathering and reporting data back to the U.S. and by taking part in economic negotiations with foreign entities.
(d) Political officers analyze and report on political questions which affect U.S. interests. They gather data to report back to the U.S. while also maintaining close contacts with foreign political and labor leaders.
6. Since establishment of the cone system, officers have been assigned to a cone at the time of hire. The officer's cone is reflected as the officer's primary skill code. A cone may include individuals with a number of different primary skill codes. For example, political officers, political-military affairs officers, and labor-political affairs officers all constitute different skill codes, yet all are within the political cone.
7. Since the institution of cones in the early 1960's, it has not been the policy of the Department to encourage FSO's to change cones. This is due to the fact that recruitment and appointment have been conducted by cone, in accordance with, inter alia, anticipated work-force needs. If substantial numbers of officers changed cones, this could result in the imbalances which had previously existed. Except for a short period from mid-1977 to mid-1978 when there was a freeze on cone changes, however, a procedure has existed which specified certain prerequisites for changing cones.
8. For the period 1971 through mid-1977, an officer who wished to change cones would request his/her Career Development Officer (CDO) to make the change. That CDO would consult with the CDO for the desired cone, the two CDO's would consider the officer's performance in out-of-cone assignments in the desired cone and any other relevant credentials (e.g., academic background). If they agreed that the officer would be competitive in the desired cone, they would recommend the change to the interfunctional assignments panel, which had the final responsibility for approving the change.
9. New procedures were adopted in June 1978 (Department Notice: Primary Skill Code Changes, June 8, 1978) which permitted cone changes under certain specified circumstances. Those procedures were in effect until May 1979.
10. New procedures were again adopted in May 1979 (Department Notice: Procedures for Primary Skill Code Changes, May 22, 1979). Those procedures have been in effect since that time and continue to constitute the only method available for changing cones.
11. The majority of FSO's enter the Foreign Service pursuant to the written and oral examination process. Beginning with the 1975 written examination, candidates were tested in all four functional fields on the written examination.
12. Between 1975 and 1979, the Junior Officer Division of the Foreign Service Career Development and Assignment Office of the Bureau of Personnel (FCA/PER) was responsible for the conal assignment of junior officers. FCA/PER would review each candidate's file, looking at his or her academic and work experience, written and oral examination results, and stated conal preference, if any. Based on this review, FCA/PER would select a cone for the candidate. If a candidate disagreed with the conal designation, he or she was free to discuss the option of obtaining a different designation.
13. Those FSO's who entered the Service pursuant to the lateral entry programs acquired cone designations as part of the lateral entry process. Lateral entry applicants themselves selected, in advance, the functional field in which they wished to compete and were evaluated only for that specific cone.
14. Candidates attempting entry into the Foreign Service pursuant to the Affirmative Action Junior Officer Program (AAJOP) and Mustang Program obtained their initial cone assignments in a manner similar to other junior officers in that the Foreign Service Career Development and Assignment Office (FCA) matched the applicant's background and experience with the requirements of the four functional fields. In addition, since 1984, AAJOP applicants must also take the written examination.
15. Beginning in 1980, candidates who pass the written examination, the assessment process, and the remaining steps of the selection procedure are placed on rank-order registers for all cones for which they passed the corresponding functional field test in the written examination. Actual offers of appointment are made in rank order, with the person who has the highest score on any conal register being offered the first appointment.
16. Candidates are free to accept or decline an offer, but are not guaranteed that a subsequent offer will be made, either in the same cone or in any other cone in which the candidate is eligible. If a candidate is reached on more than one register in advance of a convening of a given initial training course, he or she may choose the cone of appointment.
17. A statistical disparity between the selection rates of men and women for a particular job or job benefit has one of three possible causes: 1) unlawful discriminatory animus, 2) legitimate and non-discriminatory cause, or 3) the disparity may simply be a product of chance. Palmer, 815 F.2d at 90-91. A statistical analysis of a disparity in selection rates can reveal the probability that the disparity is merely a random deviation from perfectly equal selection rates. Statistics, however, cannot entirely rule out the possibility that chance caused the disparity. Nor will they be reliable if not accurately drawn or focused on a proper labor pool.
18. The terms "one-tailed" or "two-tailed"...
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