Kralowec v. Prince George's County, Md.

• Citation: 503 F. Supp. 985
• Decision Date: 17 November 1980
• Docket Number: Civ. No. W-74-1384.
• Court: U.S. District Court — District of Maryland
• Parties: Kathleen J. KRALOWEC v. PRINCE GEORGE'S COUNTY, MARYLAND.

503 F. Supp. 985

Kathleen J. KRALOWEC v. PRINCE GEORGE'S COUNTY, MARYLAND.

Civ. No. W-74-1384.

United States District Court, D. Maryland.

November 17, 1980.

COPYRIGHT MATERIAL OMITTED

Harold Buchman, Baltimore, Md., for plaintiff.

James C. Chapin, County Atty., Michael O. Connaughton, Deputy County Atty., John R. Gober, Associate County Atty., Prince George's County, Upper Marlboro, Md., for defendant.

MEMORANDUM OPINION

WATKINS, Senior District Judge.

Introduction

Plaintiff, Kathleen J. Kralowec, brings this action pursuant to Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. § 2000e et seq., alleging by an amended complaint that Prince George's County, Maryland (hereinafter the County), discriminated against her in her employment on the basis of her sex. Plaintiff charges that the County illegally denied her a promotion because of her sex and then terminated her employment in retaliation for her filing a complaint of employment discrimination with the County Attorney.

A trial de novo was held in April, 1978 on the merits of this case.¹ After a careful review of the entire record before the Court, judgment will be entered in favor of the defendant. This opinion will constitute the Court's findings of fact and conclusions of law pursuant to F.R.Civ.P. 52.

Plaintiff, an urban planner, was employed in the Model Cities Program of the County's Department of Human Resources and Community Development from September 1, 1969² until her termination on October 27, 1972. In November, 1971, Thomas Cassidy left the grade 30 position of Chief of Planning and Evaluation for the Model Cities Program to become acting Assistant Director for the Department of Human Resources and Community Development. Tr. 573.³ In December, 1971, Libeuwa Gregory Odum was appointed to the position of Chief of Planning and Evaluation in an acting capacity. Plaintiff's Trial Exhibit 49a.

The County's Personnel Office posted an announcement of promotional opportunity regarding the permanent position of Chief of Planning and Evaluation in April, 1972. Only the acting incumbent, Odum, and plaintiff, who then held a grade 27 position, submitted applications for promotion to this permanent position. On May 22, 1972 Odum was appointed to this position. Plaintiff's Trial Exhibit 49b. The Assistant Director for the Model Cities Program, Obi S. Ogene, notified plaintiff of this decision by a letter dated June 6, 1972, citing Odum's "better administrative experience" as the reason for the selection. Plaintiff's Trial Exhibit 10.

Pursuant to procedures specified in the County's Merit System Ordinance, plaintiff filed a complaint with the County Attorney, Walter H. Mahoney, on July 1, 1972 against both Obi S. Ogene and his superiors in the Department of Human Resources and Community Development under the "Prohibited Discrimination" clause, § 13-107. Plaintiff charged as follows:

I was recently (June 6, 1972) denied a promotion by Mr. Ogene in favor of a male, fellow countryman of Mr. Ogene's, who is not as well qualified for the position nor as specifically qualified for the position as myself.

I further charge, against Mr. Ogene, untoward harassment throughout our association as a result of prejudicial discrimination against me due to race, sex and national origin.⁴

The Prince George's County Personnel Department is held here as a contributory correspondent in the matter of sex discrimination.

Plaintiff's Trial Exhibit 11.

While the above-quoted complaint was pending, plaintiff directed a request by a memorandum dated September 12, 1972 to Clayton McDowell, Acting Director of the Office of Personnel, seeking a position audit of her position as Housing and Neighborhood Planner in order to accomplish the upgrading of that position from a grade 27 to a grade 30. Plaintiff's Trial Exhibit 35. This request was never acted upon, apparently because of subsequent events affecting plaintiff's employment status. Tr. 368.

On October 5, 1972 plaintiff testified before the County Attorney in support of her pending discrimination complaint. Tr. 369. On October 6, 1972 plaintiff received a memorandum dated October 2, 1972 from Obi S. Ogene, recommending her termination as of October 27, 1972. Tr. 369; Defendant's Trial Exhibit 4. The reasons cited for the proposed termination were insubordination and unsatisfactory performance, absence without leave, knowingly giving false statements to supervisor, violation of county ordinances, administrative regulations, and department rules, and consistently offensive conduct to superiors and other Model Cities members. Defendant's Trial Exhibit 4. The memorandum directed that plaintiff file her response to each charge by the close of business October 5, 1972 one day prior to plaintiff's receipt of these charges and promised notice of Ogene's final action by the close of business on October 6, 1972. Id. at 5.

By an October 12, 1972 memorandum to Clodus Smith, Director of the Department of Human Resources and Community Development, Ogene and others, plaintiff summarized her response to the charges made in Ogene's notice of termination and indicated that a more detailed reply would follow shortly. Plaintiff's full reply was sent to Obi S. Ogene by a memorandum dated October 26, 1972. In the interim, however, Ogene gave plaintiff final notice of her termination effective October 27, 1972. Defendant's Trial Exhibit 3 (dated October 13, 1972). The same memorandum notified plaintiff that she had five days to appeal this termination action.

On October 10, 1972 plaintiff supplemented her complaint filed with the County Attorney by adding an allegation of retaliatory firing. She also appealed her discharge to the Prince George's County Personnel Board. The Personnel Board convened to consider the appeal on November 13, 1972, but as the County Attorney had not yet reported his findings on plaintiff's complaint, the Personnel Board deferred action to await his decision. The Board directed that plaintiff be restored to pay in a non-duty administrative leave status, retroactive to October 27, 1972, noting that the Department of Human Resources and Community Development could reconsider appropriate personnel action following the County Attorney's determination. Plaintiff's Trial Exhibit 17 at 2.

The County Attorney issued his decision on December 29, 1972. He found no discrimination against plaintiff in her failure to be promoted. He did, however, find fault with the procedures used to select Odum as Chief of Planning and Evaluation, and directed that Odum's appointment be revoked and the selection of the Chief be made by the Director of Human Resources and Community Development without consultation with Ogene. The County Attorney did not decide the retaliatory firing issue, leaving that determination to the Personnel Board. Plaintiff appealed the County Attorney's decision to the Personnel Board.⁵

By letter dated February 1, 1973, Ogene advised plaintiff that the original termination charges against her were reinstituted. She appealed this termination action on February 5, 1973. The Personnel Board, in 31 hearing sessions between May 16, 1973 and May 20, 1974, held a de novo trial on the discrimination complaint and also considered the dismissal issue. Plaintiff, Ogene, Odum, and the Department of Human Resources and Community Development were parties to the proceedings.

The Personnel Board issued its decision on November 15, 1974. Its findings on the promotion issue state, inter alia:

Actions of offensive conduct on behalf of Appellant Kralowec so cloud the issue of discrimination on the basis of sex as to prohibit a clear finding that the County's action was, indeed, the result of such discrimination and not an action unrelated to her sex but reflective of Appellant Kralowec's past behavior. The Personnel Board, therefore, concludes only that Appellant Kralowec may have been subject to elements of prohibited discrimination. However, the issue of discrimination on the basis of sex notwithstanding, the Personnel Board concludes that presented evidence failed to demonstrate that Appellant Kralowec possessed appropriate temperment sic and supervisory ability to have been selected for the subject position. The Board, therefore, could not find that had it not been for alleged discrimination, Appellant Kralowec would have been selected to fill the position of Chief, Planning and Evaluation, Model Cities Program.

Plaintiff's Trial Exhibit 17, at 22 (emphasis in original).

With respect to the dismissal, the Personnel Board concluded that "the termination action of Appellant Kralowec may be, in part, characterized as harassment and a retaliatory act resulting from the filing of a complaint of discrimination." Plaintiff's Trial Exhibit 17, at 30. The Board directed reinstatement of the plaintiff with full back pay, an official reprimand of plaintiff, forfeiture of 20 days annual leave, removal of Odum from the contested position, and readvertising of the position with selection of the new Chief to be made by the Director of the Department of Human Resources and Community Development, priority consideration for plaintiff for the Chief of Planning and Evaluation position or any grade 30 vacancy for which she was qualified, and steps by the County to implement affirmative action.

The County refused to comply with the Personnel Board's directives and appealed the decision to the Circuit Court for Prince George's County, Maryland. That court, in an opinion issued October 15, 1975, reversed the Personnel Board. Prince George's County, Maryland v. Kralowec, Law No. 58,918 (P.G.Cty.Cir.Ct. October 15, 1975), Defendant's Exhibit No. 1. The circuit court determined that the Board was without power to consider de novo the discrimination complaint, and that the Board's jurisdiction was limited to a consideration of whether the County Attorney's decision was clearly erroneous. The circuit court found substantial basis for the ...