Gilliam v. City of Omaha, Civ. No. 71-0-155.

• Decision Date: 27 January 1975
• Docket Number: Civ. No. 71-0-155.
• Citation: 388 F. Supp. 842
• Parties: Gwynn H. GILLIAM, Plaintiff, v. CITY OF OMAHA, a Municipal Corporation, et al., Defendants.
• Court: U.S. District Court — District of Nebraska

388 F. Supp. 842

Gwynn H. GILLIAM, Plaintiff, v. CITY OF OMAHA, a Municipal Corporation, et al., Defendants.

Civ. No. 71-0-155.

United States District Court, D. Nebraska.

January 27, 1975.

COPYRIGHT MATERIAL OMITTED

Benjamin M. Wall, Omaha, Neb., for plaintiff.

Kent N. Whinnery, Asst. City Atty., for defendants.

MEMORANDUM

RICHARD E. ROBINSON, Senior District Judge.

This matter is before the Court after trial to the Court without a jury. Jurisdiction is invoked under 28 U.S.C. A. § 1343(3) (1962) and 28 U.S.C.A. § 1331 (1966). In this action the plaintiff, a black woman, contends that her civil rights have been violated and she seeks redress under Title VI of the Civil Rights Act of 1964, 42 U.S.C.A. § 2000d (1974), which provides in part that:

"No person in the United States shall, on the grounds of race, color, or national origin, be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any program or activity receiving Federal financial assistance."

FACTS

The Neighborhood Youth Corp. (NYC) was established by the Department of Labor pursuant to the Economic Opportunity Act of 1964, Pub.L. No. 88-452, Title I, § 111, 78 Stat. 512. Its purpose was to provide for the establishment of community based orgainizations to help economically and socially disadvantaged youths break out of the poverty cycle by encouraging them to complete their primary education and providing them with salable skills. 1964 U.S.Code Cong. & Admin.News, p. 2904 et seq.

In 1966 the Mayor and Council of the City of Omaha (City) applied for authorization to sponsor an NYC program in Omaha. (Exhibit 29). Their application was favorably received by the Department of Labor and a contract was entered into between the City and the federal government through its local representative, Greater Omaha Community Action (G.O.C.A.) calling upon the City to establish and administer an NYC program out of the Mayor's office under the general supervision of G.O.C.A. (Exhibits 15:29; 29A). The doors of the local program opened in late 1966 or early 1967 and after an initial period of reorganization the program assumed its permanent character prior to December of 1967.

Since many of the people who enrolled in the NYC program had personal and practical problems which jeopardized their efforts to establish a successful employment relationship, counselling services were provided to aid and support the enrollees during their participation in the training program. In December of 1967 it became necessary to increase the counselling staff of the local program from two to three. The plaintiff, who was a college graduate with limited work experience in this field, applied and was accepted for this position.¹ It is her contention that over the period of the next two and one-half years she was the victim of racial and sexual discrimination practiced by the defendants, Program Director, Mayor and City of Omaha.

It is her first contention that because of her race and sex she was denied a promotion to the position of "Department Director" or "Chief Counsellor" after that position became vacant during the summer of 1969.²

When the plaintiff joined the local program, the senior staff counselor, Mr. Colgon, appeared to exercise certain administrative and/or supervisory powers which led the plaintiff to believe that he was the program's Chief Counsellor. The plaintiff testified that she received supervision from Mr. Colgon and, in turn, reported her professional activities back through him. (T. 46:22). The contract between the City and the federal government provided for the appointment of a Chief Counsellor, (Exhibit 15, § 9) however, the precise nature and character of Mr. Colgon's authority was never fully revealed at trial. In the absence of any evidence to indicate that Mr. Colgon was officially appointed Chief Counsellor, it would appear from certain of the exhibits that limited and, largely undefined authority was informally delegated to him by the Program Director because he was the senior member of the counselling staff. (Exhibit 1, 99:35).

During the summer, enrollment in the NYC program would dramatically expand.³ In order to handle the increased workload, the program would employ several temporary counsellors,⁴ and establish an auxiliary NYC office at Offutt Air Force Base. During the summers of 1968 and 1969 the plaintiff was placed in immediate charge of the auxiliary office by the Program Director. As such, she supervised the activities of several temporary counsellors. Though she was still subject to the authority of her Program Director, she was not required to report to her duties at the main NYC office as she was, to a large extent, permitted to administer the auxiliary office as she saw fit.

Mr. Colgon resigned during the plaintiff's second summer with the Offutt program. It is difficult to determine the precise chronology of events, which followed, but shortly after his resignation two things happened. The Program Director delegated at least a portion of Mr. Colgon's authority to a Mr. Cuevas, who was then the counsellor next most senior to the plaintiff. (Exhibit 1, 100:11). At or about this same time the plaintiff asked to be promoted to the position of Chief Counsellor and was refused by the Program Director for the avowed reasons that the services of a Chief Counsellor were not desired at that time, (T. 51:10) and because it was necessary to the continuity of the Offutt program for the plaintiff to remain at her present duties. (Exhibit 1, 100:10). In light of these events and certain other testimony by the plaintiff it would seem that when she asked to be promoted to the position of Chief Counsellor she thought she was seeking a promotion to the position vacated by Mr. Colgon.⁵ However, her request was understood by the Program Director to be either (1) a request for promotion to the official position of Chief Counsellor, which had never been filled, and for which no applications had been solicited; or (2) a request for promotion to the unofficial former position of Mr. Colgon which carried with it neither financial nor other tangible benefit.

At the end of the summer of 1969 when the plaintiff returned to her regular duties at NYC's main office, the duties of the counselling staff were not redistributed. Mr. Cuevas, who had undertaken Mr. Colgon's supervisory duties, apparently continued in that capacity, although there is no suggestion that the plaintiff received supervision from, or reported to, Mr. Cuevas on a regular or irregular basis. The only suggestion in the evidence that Mr. Cuevas exercised any extraordinary authority over the other staff counsellors is found in Exhibits 24 and 25 which are documents naming Mr. Cuevas temporarily "in charge" of the NYC office during two brief absences of the Program Director. The foregoing constitutes the operative facts of the first issue raised in the plaintiff's complaint.

The plaintiff also contends that because of her race and sex she was denied raises in salary which were comparable to the raises given to other counsellors with less education and less seniority than the plaintiff.

The evidence establishes that the plaintiff was hired in December of 1967 at the rate of $600 per month and that she received only one raise of $25 per month in December of 1968. (Exhibit 2). It has also been established that the plaintiff was the only counsellor hired between December of 1967 and April of 1970 who was black, female, and had a college degree.

Two other counsellors were hired during this period of time. The first, hired in September of 1968 at a rate of $550 per month, was of Mexican-American descent. This counsellor received raises totaling $75 per month by the first anniversary of his employment. (Exhibit 3).

The second counsellor, hired in March of 1969 at the rate of $550 per month, was of American-Indian descent. He, too, had received raises totaling $75 per month by the end of his first year of employment. (Exhibit 31). Consequently, by March of 1969, all three counsellors on the program staff were earning a salary of $625 per month despite the fact that the plaintiff had as much as sixteen months' seniority over her co-workers. Furthermore, all three counsellors had reached that level by the end of their first year with the program.

No other raises were given to any staff counsellors until June of 1970, approximately six weeks after the plaintiff's resignation.

The plaintiff contends that at various times, after December of 1968, she asked the Program Director to raise her salary, but that her requests were turned down because, according to the Program Director, there were no funds available in the program's budget for employee raises. She also contends, that she was told on those occasions that her request would be presented to the proper authorities. (T. 49:6). It has, however, been established that no effort was ever made to have the program budget amended in order to raise the plaintiff's individual salary; although at least one unsuccessful effort was made to have all staff salaries raised by 5%. (Exhibits 34-35), and there is testimony to indicate that there was an effort made to have the salary scale for plaintiff's job category revised. (T. 161:7).

The plaintiff contends that she was denied the above-mentioned employment benefits because of the discriminatory manner in which the defendants conducted their offices.

JURISDICTION

As noted above, the plaintiff has brought this action under Title VI of the Civil Rights Act of 1964, 42 U.S. C.A. § 2000d et seq. (1974), dealing with discrimination in programs receiving federal financial assistance. However, since this action arises out of an employment relationship, Title VII of that Act, 42 U.S.C.A. § 2000e et seq. (1974), has a superficial relevancy to this action.⁶ It is however, clear that this action could not arise under Title VII. When this action arose, during the...