Jones v. Cleland
| Decision Date | 22 February 1979 |
| Docket Number | Civ. A. No. 77-G-1206-W. |
| Citation | 466 F. Supp. 34 |
| Parties | Kathryn C. JONES, Plaintiff, v. Max CLELAND, as Administrator of Veterans Affairs, Veterans Administration, United States of America, Defendant. |
| Court | U.S. District Court — Northern District of Alabama |
Alvin T. Prestwood, Montgomery, Ala., for plaintiff.
Caryl P. Privett, Asst. U. S. Atty., J. R. Brooks, U. S. Atty., Birmingham, Ala., for defendant.
This is an action under 42 U.S.C. § 2000e-16(c) and 29 U.S.C. § 633a(c), for discrimination against the plaintiff based on her sex and, alternatively, her age. The plaintiff, Kathryn C. Jones, is a white female, age 57, who has been continuously employed with the Veterans Administration Hospital in Tuscaloosa, Alabama, since June 1965. She was initially employed as a Clerk-Stenographer on the GS-3 level, and is currently employed as a Clerk-Stenographer on the GS-5 level. The defendant, Max Cleland, is the Administrator of Veterans Affairs with the Veterans Administration. Both parties have stipulated to the court's jurisdiction.
On September 3, 1976, the plaintiff applied for a vacant position as Volunteer Services Officer Trainee, on the GS-7 level. The plaintiff was not selected for the position, but was passed over in favor of a younger male. The plaintiff alleges that her nonselection for the position of Volunteer Services Officer Trainee was due to discrimination against her because of her sex and, alternatively, her age. This court finds the evidence sufficient to support the plaintiff's claim.
The facts in this case show that the plaintiff is a good employee, and capable of performing at a job level higher than the one she presently occupies. In addition, the evidence shows that the plaintiff has been unjustly treated by the Veterans Administration Hospital. The only question is whether this unjust treatment was due to her sex or age, and thus actionable under 42 U.S.C. § 2000e-16(a) or 29 U.S.C. § 633a (1974 amendments).
One fact which this court finds particularly revealing, although certainly not conclusive of this controversy, is that the plaintiff is the only person employed with the Veterans Administration Hospital in Tuscaloosa who has a college degree, has passed the Federal Service Entrance Examination and has twelve or more years service with the hospital, yet is employed on the GS-5 level or below. This is despite the evidence which showed that the plaintiff was a good and capable employee. All those testifying in this action spoke well of her and her ability.
When the plaintiff initially began her employment with the hospital in 1965, she was eligible for reinstatement based on her prior term of service with the federal government, but she was nevertheless required to compete for the position and serve a one-year probationary period after being selected. Moreover, in her thirteen years of service to the hospital, she has twice seen positions she was occupying abolished, necessitating her transfer to other positions. Testimony at the trial indicated that it was almost unheard of that this would happen twice to one employee.
After the second time her position was abolished, the plaintiff was transferred to the outpatient area of the admissions office, where she was not even provided with a desk or chair, but was forced to stand and work at a counter. Two of the plaintiff's co-workers in the same area, however, were provided desks and chairs, as was the plaintiff's replacement in that position.
The specific facts giving rise to the plaintiff's complaint began to unfold in August 1976, when the hospital announced that it was accepting applications for the position of Volunteer Services Officer Trainee. The plaintiff filed an application for this position on September 3, 1976. On September 24, 1976, a memorandum was sent to the plaintiff, notifying her that she had been found not to be qualified for the position because she had not met the "specialized experience requirements."
The plaintiff then requested, and was granted, an interview with a Personnel Management Specialist employed by the hospital. Before the interview was scheduled to take place, the plaintiff talked with one of the other applicants and discovered that he had been declared qualified due to his special experience in working with volunteers. Upon learning this, the plaintiff recontacted the Personnel Management Specialist and informed her that she had had certain experience working with volunteers which she had not included upon her application. This additional experience was taken into consideration by Mr. John Tilley, Chief of Volunteer Services of the hospital, who made the appointment decision. But additional credit, to which the plaintiff was entitled for her further work with volunteers while serving as secretary to the Chief of Psychiatry Service, was overlooked.
On October 7, 1976, the plaintiff was notified that although she had been qualified, she had not been selected. The plaintiff promptly filed a complaint based on age and sex discrimination which was investigated by Robert Dawson, Jr., E.E.O. Officer and Hospital Director, who concluded that there had not been discrimination. This conclusion was affirmed by a hearing examiner appointed by the Office of the General Counsel of the Veterans Administration. The plaintiff filed this suit on September 7, 1977.
The requirements for plaintiff's prima facie showing under her Title VII theory were established by the Supreme Court in McDonnell-Douglas Corp. v. Green, 411 U.S. 792, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973). Paraphrasing these guidelines to fit the present case, plaintiff must show and has shown four things:
That this approach is similarly sufficient for suits under the Age Discrimination in Employment Act (ADEA) was confirmed by the Fifth Circuit in Wilson v. Sealtest Foods Division of Kraftco Corp., 501 F.2d 84 (5th Cir. 1974), and reasserted by that court just last year in Marshall v. Goodyear Tire & Rubber Co., 554 F.2d 730 (5th Cir. 1977), and Price v. Maryland Casualty Co., 561 F.2d 609 (5th Cir. 1977).
It appears to the court that the plaintiff has presented a prima facie case of both sex and age discrimination. She has met the threshold burden, and while she must continue to carry the burden of persuasion, it behooves the defendant to rebut a prima facie showing of discrimination in employment. This principle, first developed in McDonnell-Douglas, supra, was restated by the Supreme Court this summer in a Title VII case, Furnco Construction Corp. v. Waters, 438 U.S. 567, 98 S.Ct. 2943, 57 L.Ed.2d 957 (1978). It is also the rule of this circuit in age discrimination actions, as set out in Bittar v. Air Canada, 512 F.2d 582 (5th Cir. 1975).
It falls to the defendant, then, to point to the absence of discrimination in the decision not to select the plaintiff, "proving that he based his employment decision on a legitimate consideration, and not an illegitimate one." Furnco Construction Corp., supra. This court does not believe that the defendant has met that burden. That the hospital did, in a close choice, hire a much younger male from half a continent away and without even an interview, over an older female working in its own office and having many years of capable service behind her, is immediately suspect. While this court does not intend to cast any reflection upon Mr. Tilley's veracity, the point remains that if he relied on age or sex even subconsciously in making his decision, he has discriminated against the plaintiff.
The defendant has tried to rebut the plaintiff's prima facie case by showing the selection of a better qualified applicant. The court cannot agree with the defendant on this point. Not only is this defense very weak when the two applicants were as closely matched as in this instance, but also the applicant selected over the plaintiff was chosen only because the plaintiff's application did not accurately reflect the full extent of her experience in working with volunteers.
The failure of the plaintiff's application fully to advise the defendant of her qualifications is due primarily to a lack of assistance and guidance from the hospital to the plaintiff in the preparation of her application. The testimony showed that the entire burden of recounting an applicant's experience is placed on the applicant. This places older employees at a disadvantage in applying for promotions against younger employees. The older employees would have a much more difficult time in recounting their presumably more extensive experience, which they often must delineate without the aid of accurate employment records.
More importantly, placing on the job applicant the entire burden of preparing the job application and seeing that the correct information is included contravenes the affirmative action plan adopted by the hospital on August 25, 1975. That plan reads in pertinent part:
There is a total lack of evidence showing any significant degree of implementation of this program. Rather, in establishing her prima facie case, the plaintiff has...
To continue reading
Request your trial
-
Richards v. New York City Bd. of Educ.
...may not by itself provide sufficient evidence for an ultimate finding of illegal discrimination in this case, but see Jones v. Cleland, 466 F.Supp. 34, 37-38 (N.D.Ala.1979) (nonfeasance of affirmative action plan compels finding of discrimination), common sense dictates that defendants' dis......
-
Kennedy v. Whitehurst, Civ. A. No. 80-1183.
...Maryland Casualty Co., 561 F.2d 609, 612 (5th Cir. 1977); Braswell v. Kobelinski, 428 F.Supp. 324, 328 (D.D.C.1976); Jones v. Cleland, 466 F.Supp. 34, 37 (N.D.Ala.1978), and to determining the amount of attorney's fees ultimately awarded to a successful ADEA litigant. See, e. g., Cleverly v......
-
DeFries v. Haarhues, CV 79-0010.
...runs from May 16, 1977, the date of her nonselection, to such date as she is given a comparable supervisory position. Jones v. Cleland, 466 F.Supp. 34 (N.D.Ala.1978). Further, the plaintiff is to be compensated at supervisory rates for all work performed (including base salary, night differ......
-
Jones v. Cleland, Civ. A. No. CA 77-G-1206-W.
...motion by the Plaintiff to enforce the judgment of this Court dated September 17, 1978 and filed in the Office of the Clerk on September 28, 1978 (466 F.Supp. 34).1 The "Order of Final Judgment" found that the Plaintiff had been discriminated against in federal employment because of her sex......