Moore v. Devine, 84-8416
| Decision Date | 12 August 1985 |
| Docket Number | No. 84-8416,84-8416 |
| Citation | 767 F.2d 1541 |
| Parties | 38 Fair Empl.Prac.Cas. 1196, 38 Empl. Prac. Dec. P 35,675, 54 USLW 2137 Lawrence Ellis MOORE, Plaintiff-Appellant, v. Donald DEVINE, Director of the Office of Personnel Management, et al., Defendants-Appellees. |
| Court | U.S. Court of Appeals — Eleventh Circuit |
Richard H. Sinkfield, Atlanta, Ga., for plaintiff-appellant.
Myles E. Eastwood, Asst. U.S. Atty., Atlanta, Ga., for defendants-appellees.
Susan Murphy, E.E.O.C., Office of Gen. Counsel, Appellate Div., Washington, D.C., for C. Thomas-E.E.O.C.
Appeal from the United States District Court for the Northern District of Georgia.
Before KRAVITCH and CLARK, Circuit Judge, and PECK *, Senior Circuit Judge.
This action, which is based upon Title VII of the Civil Rights Act of 1964, 42 U.S.C. Sec. 2000e et seq., was filed by the plaintiff The plaintiff's claims have their roots in his employment by the United States Civil Service Commission (CSC). In 1972, the plaintiff began working at the Atlanta Regional Office of the CSC. From 1974 until 1979 the plaintiff was the Regional EEO Representative in the office, a position which carried the grade of GS-13. The CSC ceased to exist in January, 1979 and at that time its functions were transferred to approximately four agencies, i.e., the Office of Personnel Management (OPM); the Merit System Protection Board; the Federal Labor Relations Authority; and the Equal Employment Opportunity Commission (EEOC). 1 When these changes occurred, the plaintiff's functions as the CSC's Atlanta Regional Equal Employment Opportunity Representative were transferred, along with the plaintiff himself, to the EEOC.
Lawrence Moore, in order to redress injuries sustained due to the alleged racially discriminatory policies and practices of the defendants.
In March, 1979, the plaintiff filed a charge of racial discrimination against the CSC. He later appealed to the EEOC from an adverse agency decision. In his EEOC appeal, the plaintiff alleged that he was not promoted to the position of Atlanta Area Manager because of his race. Next, he claimed that he was discriminatorily excluded from the Officer of the Day Program and was adversely affected by an inaccurate performance appraisal. The plaintiff's last argument was that the agency's denial of his request for a reclassification of his position to a GS-14 was discriminatory and thus violated Title VII of the Civil Rights Act of 1964.
The EEOC issued a final decision in which it found against the plaintiff on his promotion claim. However, it concluded that the plaintiff had been discriminated against because of his race in connection with the Officer of the Day Program. Thus, the EEOC ordered the OPM to provide the plaintiff with equal opportunities "to participate in all aspects of the job shared by other Executive level staff including but not limited to the Officer of the Day Project." Record at 51. The EEOC did not rule on the merits of the plaintiff's reclassification claim because the record did not provide "relevant data and information regarding, inter alia, the comparison of [the plaintiff's] duties with those of the upgraded employee, the agency's employee evaluation practices, the performance appraisals of blacks compared to other nonblack employees, and the circumstances surrounding the labor relations officer's change in grade." Id. at 49. As a result, the EEOC remanded the issue to the OPM and instructed it to conduct a comparative audit of both positions. The plaintiff's GS-13 job functions were to be compared to those of the GS-14 labor relations position. After completion of the audit, the EEOC indicated that it would then reconsider the decision regarding the reclassification issue in light of the results the audit produced. The OPM refused to comply with the EEOC order.
The plaintiff filed this action in the District Court for the Northern District of Georgia and raised three claims. First, he argued that he was not promoted because of his race. 2 Next, he asserted that his position should have been reclassified for two reasons: (1) the application of the alignment criteria, which would have considered the plaintiff's workload in the context of the workload of his co-workers in the Atlanta office, would have justified his reclassification to a higher grade level; and (2) the application of the "impact of the man on the job" criteria by his supervisor would have resulted in the reclassification of his position. The plaintiff also claimed that he was excluded from the Officer of the Day Program because of his race. The plaintiff's final contention was that the final The case was tried to the court without the intervention of a jury. The court found in favor of the defendants on all of the issues of discrimination. This appeal followed. Because the district court's ultimate finding of the absence of racial discrimination is not clearly erroneous, we AFFIRM.
decision of the EEOC, which ordered an audit and found discrimination in the Officer of the Day Program, should have been specifically enforced.
In this appeal the plaintiff alleges three grounds for error. First, he claims that the "internal alignment" and "impact of the man on the job" criteria was not applied with respect to his reclassification request because of his race. Second, he contends that he was not included in the Officer of the Day Program because of his race. His last claim is that the final order of the EEOC should be enforced. We now address these claims.
A. Failure to Consider the "Internal Alignment" Criteria
The evidence showed that the plaintiff's supervisor was David Caldwell. Mr. Caldwell accepted the position of Regional Director of the Atlanta office in 1974. Some of the other executives in the Atlanta Regional Office were the Chiefs of Training, Staffing, Labor Management Relations and Regional Equal Employment Opportunities, the latter position being held by plaintiff. With the exception of the plaintiff, all of the executives were white and were one level higher in terms of their grade than similarly situated executives in the smaller CSC regional offices.
The evidence demonstrated that most of the executives in the large regional offices were two grades higher than the Regional EEO Representatives in the large offices. However, the Labor Management Relations Officers were generally one grade higher than the Regional EEO Representatives. In the small regional offices, most of the executives were one grade higher than the Regional EEO Representatives. However, the Labor Management Relations Officers in the small offices generally held the same grade as the Regional EEO Representatives. Most of the Regional EEO Representatives were minorities. Plaintiff's Exhibit 24 illustrated this difference.
REGIONAL EXECUTIVE STAFF GRADES A
(W/OUTSIDE MONITORING ADV. RESP)
CHIEF
(IPPD)
CHIEF CHIEF CHIEF INT' GOVT CHIEF CHIEF DOCUMENT
REGION SIZE STAFFING PMED TRAINING PROG LMR REEO DATES
-----------------------------------------------------------------------------
Atlanta L GS-15 GS-15 GS-15 GS-15 GS-14 GS-13 1979 #1
(Southeast)
Chicago L GS-15 GS-15 GS-15 GS-15 GS-13 GS-13 1979 #3
(Great Lakes)
Dallas L GS-15 GS-15 GS-15 GS-15 GS-14 GS-13 1978 #5
(Southeast)
Phil. L GS-15 GS-15 GS-15 GS-15 GS-14 GS-13 1979 #7
(Mid-Atl.)
San Fran. L GS-15 GS-15 GS-15 GS-15 GS-14 GS-13 1978-79 #8
(Western)
Boston S GS-14 GS-14 GS-14 GS-14 GS-13 GS-13 1979 #2
(New Eng.)
Denver S GS-14 GS-14 GS-14 GS-14 GS-13 GS-13 1979 #4
(Rocky Mtn.)
New York S No Ref
(Eastern)
St. Louis S GS-14 GS-14 GS-14 GS-14 GS-13 GS-13 Undated #6
(Mid-Continent)
Seattle S GS-14 GS-14 GS-14 GS-14 GS-13 GS-12 1979 #9
(Northwest)
S = Small Office During his tenure as Regional Director, Mr. Caldwell annually certified the accuracy of the position descriptions of his staff. Mr. Caldwell did not recommend that the plaintiff's position be reclassified so that the position would be aligned with other positions in the Atlanta office.
The plaintiff argues that his position should have been reclassified under the classification principle known as "internal alignment." 3 The plaintiff claims that the position of Regional EEO Representative was not appropriately aligned with the positions of white executives in the Atlanta office that had comparable responsibilities. It is urged that the plaintiff and the white executives held the same position descriptions as their counterparts in the smaller offices. Although the white executives were uniformly rated at least one grade higher than their counterparts in the smaller offices, the plaintiff held the same grade as the EEO Representatives in the smaller offices. According to the plaintiff, this grade disparity illustrates that due to his race the principle of internal alignment was not applied so that he could receive a higher grade or a "grade premium". The plaintiff further asserts that the district court was confused about the law because it reasoned that the focus of any discrimination would have to be on Mr. Caldwell.
The defendants contend that the plaintiff's position was properly classified and that they presented legitimate nondiscriminatory reasons for the grade disparity. The defendants direct the court to one of the plaintiff's arguments, i.e., that the Labor Relations Officer and Regional EEO Representative positions were so similar that a comparison of the two should have highlighted any discrimination. The defendants argue the evidence established that the Labor Relations...
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