Ambush v. Montgomery County Government Dept. of Finance Division of Revenue, s. 79-1177
| Decision Date | 01 May 1980 |
| Docket Number | Nos. 79-1177,79-1191,s. 79-1177 |
| Citation | 620 F.2d 1048,22 F.E.P. Cases 1101 |
| Parties | 22 Fair Empl.Prac.Cas. 1101, 23 Empl. Prac. Dec. P 30,901 Barbara AMBUSH, Appellant, v. MONTGOMERY COUNTY GOVERNMENT DEPARTMENT OF FINANCE DIVISION OF REVENUE, and Douglas L. Jernigan, Individually and in his capacity as Chief, Division of Revenue and Frank L. McGovern, Jr., Individually and in his capacity as Financial Supervisor Special Programs Section of the Division of Revenue and A. W. Gault, Individually and in his capacity as Director of Finance and James Gleason, Individually and in his capacity as County Executive and Montgomery County Personnel Board and Gavin Lawson, Individually and in his capacity as Chairman Montgomery County Personnel Board, Appellees. Barbara AMBUSH, Appellee, v. MONTGOMERY COUNTY GOVERNMENT DEPARTMENT OF FINANCE DIVISION OF REVENUE and Douglas L. Jernigan, Individually and in his capacity as Chief, Division of Revenue and Frank L. McGovern, Jr., Individually and in his capacity as Financial Supervisor Special Programs Section of the Division of Revenue and A. W. Gault, Individually and in his capacity as Director of Finance and James Gleason, Individually and in his capacity as County Executive and Montgomery County Personnel Board and Gavin Lawson, Individually and in his capacity as Chairman Montgomery County Personnel Board, Appellants. |
| Court | U.S. Court of Appeals — Fourth Circuit |
Leonard L. McCants, Silver Spring, Md. (Tilman L. Gerald, Silver Spring, Md., on brief), for appellant in No. 79-1177 and for appellee in No. 79-1191.
Sue Levin, Asst. County Atty., Suzanne (Paul A. McGuckian, County Atty., Richard E. Frederick, Deputy County Atty., Rockville, Md., on brief), for appellees in No. 79-1177 and for appellants in No. 79-1191.
Before WINTER, RUSSELL and HALL, Circuit Judges.
The plaintiff has sued the Montgomery County Government (Maryland), along with certain of the County officials, charging that the County, during a reorganization of its Division of Revenue in the Department of Finance, discriminated against her "by making a pre-selection of a caucasian Office Assistant I for promotion to Office Assistant IV position which the plaintiff was more qualified to hold." The district court, in an oral opinion, after trial without a jury, found discrimination but refused to grant back pay. We reverse the finding of discrimination under Title VII against the County and the award of judgment against it on the basis of such finding. Such ruling makes moot any claim by the plaintiff for back pay.
I.
The controversy between the parties in this case arises out of a reorganization of the Division of Revenue in the Montgomery County (Maryland) Department of Finance, proposed by Douglas Jernigan after he became Chief of that Division in August, 1973. The suggested reorganization contemplated, among other things, a continuing reclassification of certain existing positions and the creation of a number of new positions. Included in the reorganization was the Special Programs Section of the Division. This section consisted of three units, generally referred to as the Administration or Investigation unit, the Rent Relief Service unit, and the Transfer unit. All three of these units were under the supervision of the Financial Supervisor, who at the times relevant to this controversy was Frank McGovern. The senior employee in the Rent Service unit was the plaintiff, in the Administration or Investigation unit Mrs. DelaCruz, and in the Transfer unit Patsy Thompson. An initial step in the reorganization in December, 1973, provided for a reclassification of a position in both the Administration and Rent Service units as Office Assistant III. There were a number of applicants for these advanced positions. All other than the plaintiff were white. The reclassified promotion in the Rent Service unit was given the plaintiff and the reclassified position in the Administration unit to Mrs. DelaCruz.
The claim of discrimination relates to the next step in the reorganization as it affected the Special Programs Section. After considerable discussion between Jernigan, as head of the Division of Revenue, and Brewster, the Chief of the Division of Classification Compensation and Research, Jernigan was given informal approval of additional parts of his reorganization proposal. Among the changes then approved was the assignment of two Office Assistant IV positions to the Special Programs Section. In consultation with Brewster, Jernigan determined to assign these positions to the Administration and Transfer units of the Section. Jernigan understood that the two reclassifications within these units would be a position-for-position reclassification on a non-competitive basis, i. e., that so long as the senior incumbent employee in the selected unit was qualified for the higher position she would be entitled to the promotion. He communicated this information to his supervisors, including McGovern, with instructions that they should advise their employees the procedure under which the assignment of the reclassified positions would be made. Under this procedure the senior employee in the Administration and Transfer units would receive the promotions.
On the basis of the information given him by Jernigan, McGovern called the plaintiff to his office in order to explain to her that there would be no change in her unit or her status as a result of the allocation of the two new positions to the Special Programs Section. The plaintiff testified McGovern told her at this time that there was no need for her to apply for either promotion. She added that he also told her Patsy Thompson was to receive the promotion assigned to the Transfer unit. This latter statement is contrary to McGovern's recollection of the conversation, as detailed in his testimony. The difference in the recollection of the two, though, is unimportant. It is undisputed that at this point in the reorganization McGovern had been instructed by Jernigan to assign the two promotions to senior employees in the Administration and Transfer units and that Thompson was the senior employee in the Transfer unit at the time. If McGovern told the plaintiff what the latter said he did, he was telling her only what Jernigan had instructed him to advise the employees in his Section.
The plaintiff became very upset when she was told how the new promotions should be assigned. She demanded to know who had made the assignments of the promotions to the respective units of the section and why the assignments had been made as they had been. She pressed the demand; the argument became heated. McGovern lost his temper. McGovern particularly took offense at the plaintiff's inference that he was "lying" in the responses he had given her. He finally told the plaintiff it was none of her "f business," that the assignment of the promotions within the section was the prerogative of her supervisors.
Later Jernigan received information from the County personnel office that his previous understanding of the manner in which the employees to be given the newly assigned positions would not be followed, and that the promotions were to be advertised and to be competitively awarded. He called McGovern, told him of the change and instructed him to tell any of his employees, if they felt qualified, to apply for the promotions. McGovern did advise his employees of the change of procedure in making the promotions and of the right of any of them to apply. The plaintiff testified she was not present when McGovern made the announcement. McGovern, in his testimony said he believed the plaintiff did know of the new method of filling the positions for she later commented to him with reference to the announcement of the change, "(w)hat is the use, we know who is going to get the positions anyway." This testimony of McGovern is supported by the fact that the plaintiff herself justified not applying for the promotion because she said she knew it was already decided who was to be awarded the promotion. In any event the plaintiff did not apply and in due course the promotion was awarded to Patsy Thompson who was, as we have said, the senior employee in the Transfer unit, was familiar with all the details and responsibilities of the unit, had exercised certain subordinate supervisory duties in the unit, and whose work in the unit was rated as more than adequate.
Thereafter, the plaintiff continued to express her dissatisfaction with the failure to promote her to Office Assistant IV. She took her complaint to the Director of Finance. At this time, she was not so much complaining of Thompson's promotion in the Transfer unit as of the failure of the Department to assign an Office Assistant IV position to her Rent Relief unit. Because of this complaint, a desk audit of the Special Programs was ordered by the Director of Finance in order to determine whether the assignments made of the newly authorized Assistant Director IV positions had been properly made on the basis of the complexity, responsibility and work loads of the respective units in the Program. The audit confirmed the determination made by Jernigan.
The plaintiff in the meantime filed her complaint of discrimination with the EEOC. In her complaint she said:
After receiving a suit letter from the EEOC, the plaintiff filed this action. The cause came on for trial and, at the conclusion of the testimony, the district judge, in an oral...
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