801 F.2d 709 (4th Cir. 1986), 85-2374, Pecker v. Heckler

Docket Nº:85-2374.
Citation:801 F.2d 709
Party Name:Maxine C. PECKER, Appellant, v. Margaret HECKLER, Dept. of Health & Human Services, Martha McSteen, Social Security Administrator, Appellees.
Case Date:September 24, 1986
Court:United States Courts of Appeals, Court of Appeals for the Fourth Circuit

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801 F.2d 709 (4th Cir. 1986)

Maxine C. PECKER, Appellant,


Margaret HECKLER, Dept. of Health & Human Services, Martha

McSteen, Social Security Administrator, Appellees.

No. 85-2374.

United States Court of Appeals, Fourth Circuit

September 24, 1986

Argued July 16, 1986.

Sarah E. Siskind (Vladeck, Waldman, Elias & Engelhard, P.C., New York City, on brief), for appellant.

Linda R. Ruiz (Office of Gen. Counsel, Dept. of Health and Human Services, Justin W. Williams, U.S. Atty., Paul P. Newett, Asst. U.S. Atty., Alexandria, Va., on brief), for appellee.

Before WINTER, Chief Judge, and HALL and SPROUSE, Circuit Judges.


Maxine Pecker appeals from an order of the district court granting summary judgment in favor of the Secretary of the Department of Health and Human Services and the Commissioner of the Social Security Administration in her suit to enforce a decision of the Equal Employment Opportunity Commission (EEOC), which had found that she had been denied a promotion as a result of race discrimination and retaliation in violation of Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. Secs. 2000e et seq. The major controversy

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in the district court concerned whether the relief granted by the EEOC was adequate. The district court decided that it was, stating that plaintiff "ha[d] received what she was entitled to." Because we think that she is entitled to greater relief than that granted by the EEOC and upheld by the district court, we reverse the judgment of the district court and remand for the entry of a decree declaring defendants liable for discrimination and retaliation in denying plaintiff's promotion, enjoining further discrimination and retaliation against plaintiff, and ordering reinstatement, back pay, and front pay.


In August 1978 plaintiff, a Hearing Assistant (classified at government service grade level GS-8) in the Albany, New York office of the Social Security Administration's Bureau of Hearing and Appeals, was temporarily detailed to the Bureau's central office in Arlington, Virginia. Plaintiff served consecutive 30-day details in the Arlington office until April 1979, when she returned to Albany. During those details she acted as Deputy Manager, Docket and Files, and as defendants concede, performed her duties in an outstanding manner.

In March 1979 the agency posted a vacancy announcement for the position of Deputy Manager, Docket and Files, GS-10. Four persons were placed on the "best qualified" list, including plaintiff, who was considered by the Manager of Docket and Files as the most highly qualified of the four. Before anyone was selected for the job, the agency cancelled the vacancy announcement. Then in September 1979, while the position was unfilled, the Deputy Manager job was reclassified at the GS-11 level.

In June 1979 plaintiff filed an Equal Employment Opportunity (EEO) complaint charging that, by cancelling the vacancy announcement, defendants retaliated against her 1 and discriminated against her on the basis of religion, sex, and race.

The Complaints Examiner found that plaintiff was the victim of racial discrimination and retaliation as a result of the cancellation of the vacancy announcement, which denied plaintiff the opportunity to be considered for promotion. The Examiner recommended that plaintiff be given priority consideration for the next available GS-10 position for which she was qualified.

Defendants adopted this decision. Plaintiff, however, appealed to the EEOC, challenging the adequacy of the remedy.

The EEOC found that defendant had not proved by clear and convincing evidence that plaintiff would not, even absent discrimination, have received the vacant position if it had not been cancelled. It ordered defendants to promote plaintiff retroactively to the position of Deputy Manager, GS-10, effective April 1979. The EEOC further stated that if a position of Deputy Manager was not vacant at the time of its decision, the parties could agree on an alternative placement with similar benefits.

At the time of that decision, the position of Deputy Manager was filled and there was no available GS-10 position in the Bureau's Arlington office. Plaintiff filed this suit in the district court seeking declaratory and injunctive relief, retroactive promotion (to "the grade level and position she would have occupied but for defendants' discriminatory and retaliatory treatment"), and commensurate back and front pay and benefits. Approximately seven weeks after suit was filed, defendant offered plaintiff the newly created position of Case Reconstruction Supervisor, GS-10. Plaintiff accepted the offer, at the same time indicating that she still disputed the remedy.

Liability was not contested in the district court, the sole issue being the adequacy of the remedy granted by the EEOC. The district court denied plaintiff's request for additional relief, granting defendant's motion for summary judgment.

Plaintiff appeals, asserting entitlement to reinstatement to the position of Deputy Manager, Dockets and Files, GS-11 (the level to which the job was upgraded shortly

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after she was denied promotion). She also requests backpay, dating from April 1980, 2 at the GS-11 level and front pay at the same level until such time as she is placed in the GS-11 job she seeks, or its substantial equivalent. Plaintiff also challenges the district court's failure to enter an order enforcing the EEOC's finding of liability and enjoining further discrimination against her by defendants.

Defendants urge affirmance of the district court's order, contending that plaintiff was entitled only to reinstatement and backpay at the GS-10 level (the classification of the Deputy Manager's job in April 1979 when plaintiff was denied promotion), and that in any event her current position as Case Reconstruction Supervisor, GS-10, is the substantial equivalent of the job to which she is entitled.


A. Reinstatement

The central issue raised in this appeal is whether the remedy afforded by the EEOC and affirmed by the district court was adequate to make plaintiff whole pursuant to the remedial provisions of Title VII. 3 See 42 U.S.C. Secs. 2000e-5(g) and 2000e-16. We recently stated the standard to be applied by the courts of this circuit in determining what is an appropriate remedy under the statute: "[O]ur objective is to place plaintiff in a position as near as possible to where she would now be had discrimination not occurred." Curl v. Reavis, 740 F.2d 1323, 1330 (4 Cir.1984) (citing Albemarle Paper Co. v. Moody, 422 U.S. 405, 418-19, 95 S.Ct. 2362, 2372, 45 L.Ed.2d 280 (1975); see also Franks v. Bowman Transportation Co., 424 U.S. 747, 769, 96 S.Ct. 1251, 1266, 47 L.Ed.2d 444 (1976).

In the case before us, the task of determining what plaintiffs' position would be absent discrimination presents little difficulty. Plaintiff has shown 4 that the position of Deputy Manager, Dockets and Files, GS-10, for which she applied in early 1979, remained vacant and then was upgraded to GS-11 in September 1979. The

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nature of the job did not change as a result of...

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