Johnson v. Brock, 85-5949

• Decision Date: 20 January 1987
• Docket Number: No. 85-5949,85-5949
• Citation: 810 F.2d 219
• Parties: 45 Fair Empl.Prac.Cas. 435, 42 Empl. Prac. Dec. P 36,784, 258 U.S.App.D.C. 100 Lucy JOHNSON, Appellant, v. William BROCK, in his official capacity as Acting Secretary of the Department of Labor.
• Court: U.S. Court of Appeals — District of Columbia Circuit

Page 219

810 F.2d 219

45 Fair Empl.Prac.Cas. 435,

42 Empl. Prac. Dec. P 36,784, 258 U.S.App.D.C. 100

Lucy JOHNSON, Appellant, v. William BROCK, in his official capacity as Acting Secretary

of the Department of Labor.

No. 85-5949

.

United States Court of Appeals, District of Columbia Circuit.

Argued Oct. 2, 1986.

Decided Jan. 20, 1987.

Appeal from the United States District Court for the District of Columbia (Civil Action No. 84-01905).

Stephen C. Leckar, Chicago, Ill., with whom Robert A.W. Boraks, Washington, D.C., was on brief for appellant.

Patricia D. Carter, Asst. U.S. Atty., with whom Joseph E. diGenova, U.S. Atty., Royce C. Lamberth and R. Craig Lawrence, Asst. U.S. Attys., Washington, D.C., were on brief for appellee.

Before SILBERMAN and WILLIAMS, Circuit Judges, and JAMESON, ^* Senior District Judge.

Opinion for the Court filed by Senior District Judge JAMESON.

JAMESON, Senior District Judge:

Plaintiff-appellant, Lucy Johnson, is a black female employee of the Employment and Training Administration (ETA), an agency of the Department of Labor (DOL). She was a GS-12 contract specialist in December 1981, when the agency experienced a reduction in work force (RIF), and Johnson was downgraded to a GS-4 clerk. She was repromoted to a GS-9 contract specialist in 1983. In this Title VII action the district court found Johnson to have been the victim of a continuing pattern of race discrimination and ordered that she be repromoted to a GS-12 position, with appropriate back pay. The court held, however, that Johnson did not have repromotive rights to a GS-13 level position. Johnson appeals that portion of the court's opinion which refused (1) to order her promotion to a GS-13 position, and (2) to enjoin defendant-appellee from further acts of discrimination. We affirm.

I. BACKGROUND

Lucy Johnson began her government service in 1965 as a GS-3 clerk-typist with the Federal Housing Administration. She subsequently moved to a position as a GS-5 secretary in the Office of Economic Opportunity, which was assimilated by the DOL in 1967. In 1980, Johnson obtained a permanent position as a GS-12 contract specialist in ETA's Office of Contracting. The record indicates that on several occasions Johnson received special recognition as an outstanding employee and that her supervisors felt that her performance was well above average. In September 1981, she applied for, and qualified for, a "GS-13 vacancy for a contract specialist, but on October 5, 1981, the position announcement was cancelled."

In December 1981, ETA experienced a RIF which resulted in the elimination of Johnson's position. Johnson was reduced in grade to a GS-4 clerk-typist. Despite the reduction, however, Johnson continued to receive the salary of a GS-12. Johnson was also notified that she was eligible for "special consideration for repromotion" to her former grade level. Apparently this special consideration meant that if a position at her former grade level became available within two years she would be repromoted unless there were "very good reasons for not doing so." ¹ The district court found that Johnson "doggedly applied for vacancies as they occurred." In August 1983, Johnson was repromoted to a GS-9 contract-specialist. ² She was never repromoted to her pre-RIF grade level.

After the December 1981 RIF, ETA experienced substantial administrative and personnel reorganizations and reductions. Between 1981 and 1985 the total work force was cut by more than one half, from 3,486 to 1,696. The Office of Contracting merged with the Office of Policy, Evaluation and Research. The resulting product was then moved from the Programs Office to the Office of Administration. The merged office continued to work on contracts and received new responsibility for grants. The reorganization resulted in the reinstatement of the contract-specialist positions that were abolished in December 1981, and the creation of additional contract-specialist positions.

Lucy Johnson did not receive an invitation to fill any of the reinstated or newly created contract-specialist positions. Instead, Thomas C. Komarek, ETA's Administrator of Financial Controls and Management Systems, decided to fill the positions by lateral reassignment rather than by repromotion or competitive staffing. Komarek filled the reinstated and newly created positions with employees from within the ETA whose positions were either threatened by RIFs or were abolished. The new contract-specialists entered the Office of Contracting at or above the GS-11 level. ³ None of the new contract-specialists had previously been a contract-specialist. All of them were white. At the time the positions were filled, DOL procedure provided for consideration of repromotion rights only when positions were filled by competition. Consequently, Johnson was not considered for the reinstated and newly created contract-specialist positions.

Subsequently, in the summer of 1982, Janet Sten, Acting Director of the Office of Contracting, filled four contract-specialist positions at the GS-11 level by repromotion. All of the repromoted individuals were black and had held positions at the GS-11 level. In October 1983, Edward Tomchick, Sten's successor, repromoted an additional black female to a GS-12 contract position. The district court found that Sten and Tomchick consciously decided not to repromote Johnson on the basis of vague comments by a former supervisor that Johnson was a "slow learner." The district court also found that the personnel shifts at ETA had a significant impact on the racial composition of grades 12 through 14. The end result was a work force that was almost entirely white in the GS-12 through GS-14 positions. ⁴

In June 1984, Johnson filed her complaint in the district court, alleging that the Department of Labor had "engaged in a pattern or practice of race discrimination in making personnel assignments into the Office of Contracting" in violation of Title VII of the Civil Rights Act of 1964, 42 U.S.C. Secs. 2000e et seq. The district court held that the evidence did not support a finding of specific discriminatory intent. The court did hold, however, that Johnson had established a prima facie case of discrimination and that the Department of Labor's asserted justifications for its failure to repromote Johnson were mere pretext. Consequently, the court ordered the Department of Labor to promote Johnson to a GS-12 level position retroactive to December 31, 1983. ⁵ The court refused to order her promotion to a GS-13 level position on the basis of its finding that Johnson "had repromotion rights only to [a] GS-12 level position, not to a GS-13 level position, and therefore [she had] failed to establish that it is more likely than not likely that but for the combination of discriminatory circumstances ...," she would have been promoted to GS-13. On a motion for reconsideration, Johnson challenged the court's refusal to promote her to a GS-13 level position and asked the court to enjoin the Department of Labor from further acts of discrimination. The court denied Johnson's motion.

II. CONTENTIONS ON APPEAL

Johnson appeals the district court's refusal to order her promotion to a GS-13 level position and its refusal to enjoin the DOL from further acts of discrimination. She argues that, absent the discriminatory actions, she would have been eligible for promotion to a GS-13 level position and that in all likelihood she would have received a promotion. She also claims that because the circumstances at ETA remained unchanged so that nothing would prevent the Department from committing further acts of discrimination, the district court abused its discretion in refusing to issue an injunction.

III. PROMOTION TO GS-13

The essence of Johnson's claim of entitlement to a GS-13 level position is that the district court failed to fully employ the "make whole" remedial directives of Title VII. See Albemarle Paper Co. v. Moody, 422 U.S. 405, 95 S.Ct. 2362, 45 L.Ed.2d 280 (1975). Johnson claims that but for the established discrimination she would have been promoted to a GS-13 level position. Relying on Day v. Mathews, 530 F.2d 1083 (D.C.Cir.1976), and Bundy v. Jackson, 641 F.2d 934 (D.C.Cir.1981), she argues that it was incumbent upon the Government to prove by clear and convincing evidence that she would not have attained a GS-13 level position. Johnson's reliance on these two cases is misplaced.

At the outset, we note that this court has recognized that in Title VII cases "the questions of statutory violation and appropriate statutory remedy are conceptually distinct." Smith v. Secretary of the Navy, 659 F.2d 1113, 1120 (D.C.Cir.1981). To determine whether an employer's conduct constitutes a statutory violation, the court must employ the following allocation of burdens and order of proof:

First, the plaintiff has the burden of proving by the preponderance of the evidence a prima facie case of discrimination. Second, if the plaintiff succeeds in proving the prima facie case, the burden shifts to the defendant "to articulate some legitimate, nondiscriminatory reason for the employee's rejection." Third, should the defendant carry this burden, the plaintiff must then have an opportunity to prove by a preponderance of the evidence that the legitimate reasons offered by the defendant were not its true reasons, but were a pretext for discrimination.

Texas Dep't of Community Affairs v. Burdine, 450 U.S. 248, 252-53, 101 S.Ct. 1089, 1093, 67 L.Ed.2d 207 (1981) (quoting McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802, 93 S.Ct. 1817, 1824, 36 L.Ed.2d 668 (1973) (citations omitted). In order to make out a prima facie case of discrimination for failure to promote,

the plaintiff must show that she belongs to a protected group, that she was qualified for and applied for a promotion, that she was considered for and denied the promotion, and that other employees who were not members of the protected group were indeed...