Jones v. Cleland, Civ. A. No. CA 77-G-1206-W.

• Decision Date: 27 February 1981
• Docket Number: Civ. A. No. CA 77-G-1206-W.
• Citation: 515 F. Supp. 212
• 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

515 F. Supp. 212

Kathryn C. JONES, Plaintiff, v. Max CLELAND, as Administrator of Veterans Affairs, Veterans Administration, United States of America, Defendant.

Civ. A. No. CA 77-G-1206-W.

United States District Court, N. D. Alabama, W. D.

February 27, 1981.

Alvin T. Prestwood, Montgomery, Ala., for plaintiff.

Caryl P. Privett, Asst. U.S. Atty., Birmingham, Ala., for defendant.

ORDER ENFORCING FINAL JUDGMENT

GUIN, District Judge.

The Plaintiff's motion to enforce the final judgment of this Court dated September 27, 1978 is hereby GRANTED, and, in conformity with and pursuant to the Memorandum Opinion entered contemporaneously herewith, it is

ORDERED, ADJUDGED and DECREED as follows:

1. The Defendant shall "red-circle" the Plaintiff and promote her to the next position of Chief of Voluntary Services which comes open after the Plaintiff's completion of six months of service and training as Voluntary Services Officer Trainee at Veterans Administration Hospital, Tuscaloosa, Alabama; provided, however, that such "red-circling" shall terminate if and when the Plaintiff is offered such a position and declines to accept it;

2. The Defendant shall pay the Plaintiff back pay at the GS-7 personnel grade with full benefits therein to which she would have been entitled, including normal increases in pay, had she served as Voluntary Services Officer Trainee from October 7, 1976 to January 12, 1978;

3. The Defendant shall pay the Plaintiff back pay at the GS-9 personnel grade with full benefits therein to which she would have been entitled, including normal increases in pay, had she been given the job of Chief of Voluntary Services on January 13, 1978 at the personnel grade and pay level of GS-9/1, such pay and benefits to be computed to the day she is actually placed in the position of Chief of Voluntary Services, or is offered such a position and declines to accept it;

4. Because of the long delay already occasioned by the stays and appeal in this cause, this Court is apprehensive that another such appeal might further delay the payment by the Defendant of the Plaintiff's back pay, none of which had been paid at the time of the evidentiary hearing on February 3, 1981; therefore, if for any reason the Defendant is not immediately required to pay to the Plaintiff the back pay to which she is entitled under this order, the Defendant shall forthwith pay to the Plaintiff the amount of back pay which the Defendant has heretofore computed to be due the Plaintiff, without a waiver of any of the Plaintiff's rights to further back pay in compliance with the terms of this order.

5. All other matters relating to this cause, including the issue of the award of attorney's fees and expenses to the Plaintiff, are reserved.

Costs are taxed against the Defendant.

MEMORANDUM OPINION

This cause is before the Court upon a 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 (under 42 U.S.C. § 2000e et seq.) and, alternatively, because of her age (under 29 U.S.C. § 621 et seq.), and provided, in pertinent part, as follows:

"First, plaintiff shall be given the promotion for which she had applied, to the position of Volunteer Voluntary Services Officer Trainee, or, if this position is not now open, she shall be `red-circled' and given the next comparable position which comes open;

"Second, plaintiff shall be given back pay with interest and full benefits befitting the job which she was denied from the date of the denial, October 7, 1976, to the date she is given this or another comparable promotion...."

The Defendant appealed this Court's decision to the United States Court of Appeals for the Fifth Circuit, and that Court affirmed the judgment of this Court. See Jones v. Cleland, 619 F.2d 82 (5th Cir. 1980). After the appeal process was completed, the Defendant notified Plaintiff's counsel that the Plaintiff would be placed in the position of Voluntary Services Officer Trainee effective July 27, 1980,² and that her back pay would be computed in that position in the GS-7 grade level from October 7, 1976 to July 26, 1980, and that her time-in-grade would be computed from October 7, 1976.

The Plaintiff contends that "full benefits befitting the job which she was denied" include more than just back pay in the training position itself, but also a promotion to Chief of Voluntary Services, and that the letter and spirit of this Court's order required the Defendant to provide her back pay benefits from October 7, 1976, at the GS-7 level in the position of Voluntary Services Officer Trainee, to the time when that training program would have been completed. From that time, the Plaintiff contends that she should have been given back pay benefits as Chief of Voluntary Services.

This Court set an evidentiary hearing on February 3, 1981, specifically to determine whether a promotion to the position of Chief of Voluntary Services was in fact a "benefit befitting the job which the Plaintiff was denied."

The undisputed evidence shows that 15 persons were serving in the position of Voluntary Services Officer Trainee on October 7, 1976, and that 42 persons were appointed to that training position between October 7, 1976 and the time of the evidentiary hearing. Of the total of 57 persons thus serving in that training position nationwide since October 7, 1976, 12 are still in training.³ Of the 45 persons who are no longer in the program one "left" or "dropped out" of the training program.⁴

The Court finds from the undisputed evidence that 44 training participants have completed their training since October 7, 1976 and that 41 of that group were promoted directly to the position of Chief of Voluntary Services within eleven months from the commencement of their training.⁵ The remaining three training participants who completed the program ultimately were all promoted to Chief of Voluntary Services, but, for various reasons, they all passed temporarily through the position of Assistant Chief of Voluntary Services. However, they all ultimately made their way to the full Chief positions in eleven, twenty-two, and twenty-seven months, respectively, from the date they began their training.

Since all 44 of the trainees who completed their training were promoted to the position of Chief of Voluntary Services, this Court can only conclude that such promotion was in fact a "benefit befitting the job" of Voluntary Services Officer Trainee.⁶ While nothing is...