Machakos v. Attorney Gen. of U.S.

• Decision Date: 25 October 1988
• Docket Number: No. 87-5069,87-5069
• Citation: Machakos v. Attorney Gen. of U.S., 859 F.2d 1487 (D.C. Cir. 1988)
• Parties: 48 Fair Empl.Prac.Cas. 306, 47 Empl. Prac. Dec. P 38,352, 273 U.S.App.D.C. 340 Rita MACHAKOS, Appellant, v. ATTORNEY GENERAL OF the UNITED STATES.
• Court: U.S. Court of Appeals — District of Columbia Circuit

Page 1487

859 F.2d 1487

48 Fair Empl.Prac.Cas. 306,

47 Empl. Prac. Dec. P 38,352, 273 U.S.App.D.C. 340

Rita MACHAKOS, Appellant, v.ATTORNEY GENERAL OF the UNITED STATES.

No. 87-5069.

United States Court of Appeals District of Columbia Circuit.

Argued Oct. 4, 1988.

Decided Oct. 25, 1988.

Amy E. Wind, with whom Irving Kator and Joseph B. Scott were on the brief for appellant.Jennifer R. Levin, Washington, D.C., also entered an appearance for appellant.

R. Craig Lawrence, Asst. U.S. Atty., with whom Jay B. Stephens, U.S. Atty., John D. Bates and Richard N. Reback, Asst. U.S. Attys., Washington, D.C., were on the brief for appellee.Stuart H. Newberger, Asst. U.S. Atty., Washington, D.C., also entered an appearance for appellee.

Before RUTH BADER GINSBURG and SILBERMAN, Circuit Judges, and POLLACK, ^*Senior District Judge.

RUTH BADER GINSBURG, Circuit Judge:

Plaintiff-appellantRita Machakos, a white female born in 1924, was denied promotions she sought in clerical/paralegal posts in the Civil Rights Division(CRD) of the Department of Justice during 1977-1984.In each instance, the individual selected for the post was a black female under forty.Machakos sued the Attorney General and the Department, alleging race discrimination and retaliation prohibited by Title VII of the 1964 Civil Rights Act,42 U.S.C. Sec. 2000 et seq., age discrimination prohibited by the Age Discrimination in Employment Act (ADEA),29 U.S.C. Sec. 633a, sex discrimination in compensation prohibited by the Equal Pay Act,29 U.S.C. Sec. 206(d)(1), and violations of the Privacy Act,5 U.S.C. Sec. 552a.The district court entered judgment for plaintiff on her Title VII claims and for defendants on the ADEA claim; it granted plaintiff's request to nonsuit her Equal Pay Act claim and dismissed the Privacy Act claim as unproved.As principal Title VII relief, the court ordered promotion and backpay retroactive to February 1984.Machakos v. Meese, 647 F.Supp. 1253(D.D.C.1986).

In this appeal, Machakos asserts entitlement to Title VII relief retroactive to 1977¹ and seeks reversal of the judgments for defendants on her ADEAandPrivacy Act claims.Our review of the record does not leave us"with the definite and firm conviction that a mistake has been committed" by the district court, and we therefore affirm that court's judgment.SeeJohnson v. Brock, 810 F.2d 219, 225(D.C.Cir.1987)(quotingUnited States v. United States Gypsum Co., 333 U.S. 364, 395, 68 S.Ct. 525, 542, 92 L.Ed. 746(1948)).

I.

Machakos alleged, and the district court found, that the CRD pursued an unlawful minority preference policy during the period 1977-1984.However, as we comprehend the district court's decision, that court determined the Diane Roberts promotion in February 1984, 647 F.Supp. at 1259, 1266, to be the time when the cumulative evidence warranted a determination that defendants' race preference practices impacted adversely on plaintiff.Seeid. at 1261(emphasizing that finding of reverse discrimination was based on cumulative impact rather than on any particular pre-1984 employment decision);cf.Johnson v. Brock, 810 F.2d at 221-22 & n. 5(black female plaintiff, in course of two-year special repromotion consideration period, "doggedly applied for vacancies as they occurred"; district court ordered promotion retroactive to last day of period finding that plaintiff"should have at least been promoted by the end of her period of special consideration for repromotion");Toney v. Block, 705 F.2d 1364, 1366(D.C.Cir.1983)(principle enunciated in Day v. Mathews, 530 F.2d 1083(D.C.Cir.1976), imposing extraordinary proof burden on employer, is properly confined to cases in which plaintiff has established not merely "institutional or systemic discrimination" or discrimination "with regard to [manner of supervision or] work assignments," but, specifically, discrimination "with regard to the evaluation of [plaintiff's] qualifications ... in the particular employment decision for which retroactive relief was sought ")(emphasis in original).We find no clear error in the district court's refusal to rule that an earlier denial of promotion to Machakos was an identifiable product of the CRD's discriminatory policy.

Machakos stresses the CRD's practice of detailing minority workers into jobs so that they would gain experience.The district court referred to four instances of that character.In April 1983, Quilla James obtained a GS-9 with a promotion potential to a GS-11, 647 F.Supp. at 1258;Appendix(App.)at 153.In February 1984, Diane Roberts obtained a GS-11, 647 F.Supp. at 1259;App.at 166.And in March 1984, Ann Johnson and Sarah Smith each obtained a GS-9, 647 F.Supp. at 1259;App.at 155.Of these four personnel decisions, only one occurred prior to the February 24, 1984 Roberts promotion--the promotion that was the reference point for the retroactive relief accorded Machakos.That single instance was the GS-9 post filled by Quilla James on April 6, 1983.But Machakos had held a GS-9 since July 1981, 647 F.Supp. at 1265, thus this evidence is insufficient to mark as "clear error"the court's selection of the February 1984 date for promotion of Machakos to the GS-11 rank.²

In November 1977, Flora Brown was brought in from outside the Justice Department as a lateral hire for a GS-7/9 paralegal post, although the vacancy announcement had specified as the Area of Consideration only "Offices, Boards, and Divisions" of the Justice Department.App.at 94, 100.Machakos claims her own qualifications were superior to Brown's.She does not substantiate this comparative judgment, however; the district court did not find the incident significant enough to mention in its opinion; and we do not consider it "clear error" to fail to treat this episode as probative of discrimination.

Machakos presses most vigorously the claim that a reference point more appropriate than the February 1984Diane Roberts promotion is the August 1977 date on which Brenda Sheppard received a lateral appointment to a GS-11post.See647 F.Supp. at 1257.But the district court noted that seven applicants for that job ranked higher than Machakos.Id.Nor did Machakos rate among the best qualified candidates for the GS-7/9 to which she applied simultaneously.Again no "clear error" reveals itself in these episodes.³

Machakos also urges that all her applications were timely, although the government maintains that some were not; she calls our attention to the district court's observation that, regarding vacancy deadlines and application requirements, the Department was "willing to be more accommodating ... to black applicants."647 F.Supp. at 1259.⁴But the allegedly telling evidence she relies on here relates to the Roberts promotion on February 24, 1984, which the court made the reference point for Machakos' retroactive relief, and the promotion of Donna Enos to a GS-11 on a later day, March 12, 1984.SeeApp. 159-63.

Finally, Machakos argues that her case fits the pattern defined in Bundy v. Jackson, 641 F.2d 934, 952-53(D.C.Cir.1981), and restated in Johnson v. Brock, 810 F.2d at 224-25: discrimination pervaded her workplace, she maintains; it caused her injury "apart from a failure to promote"; so she is entitled to fully retroactive relief "merely by showing (1)she was a victim of a pattern of discrimination, and (2)she applied for and was denied a promotion for which she was technically eligible and of which she had a reasonable expectation."Brief for Appellantat 31-32.

Machakos' case is not like Bundy's.The plaintiff in Bundy had proved she was a victim of sexual harassment in violation of Title VII, and had therefore won declaratory and injunctive relief on that account alone.Because she had established unlawful discrimination against her and entitlement to relief "as a matter wholly independent of her claim for back pay and promotion,"this court held that she"enter[ed] the ritual order of proof at an advantage over the typical Title VIIplaintiff who claims categorical ... discrimination which can only be proved as an incident of the discriminatory denial of promotion or other tangible benefit."Bundy, 641 F.2d at 952.

Here, there is no "wholly independent" race discrimination claim entitling Machakos to relief.There is only the claim of categorical discrimination built upon alleged "incident[s] of discriminatory denial of promotion."Nothing in this record, in short, support Machakos' argument that she should reap "an advantage over the typical Title VIIplaintiff."

In sum, we find in the district court's Title VII-retroactive relief adjudication neither clear error, seePullman-Standard v. Swint, 456 U.S. 273, 102 S.Ct. 1781, 72 L.Ed.2d 66(1982), nor an abuse of that court's "traditional discretion to locate 'a just result' in light of the circumstances peculiar to the case."Albemarle Paper Co. v. Moody, 422 U.S. 405, 424, 95 S.Ct. 2362, 2375, 45 L.Ed.2d 280(1975)(quotingLangnes v. Green, 282 U.S. 531, 541, 51 S.Ct. 243, 247, 75 L.Ed. 520(1931));Johnson v. Brock, 810 F.2d at 224.

II.

Machakos' ADEAandPrivacy Act claims are not close calls.The evidence that persuaded the district court to find race discrimination, i.e., the testimony of Department officials concerning "an informal policy of promoting blacks within the Civil Rights Division,"647 F.Supp. at 1260, provides not a shred of support for an age discrimination inference.SeeSupplemental Appendix(S.App.)at 115(departmental EEO counselor Dulmage affirms that it was a reverse discrimination problem, not a sex or age case).Far from finding any clear error in the district court's disposition of this claim, our review of the record satisfies us that there was indeed "no evidence that age was 'a determining factor' in the decisions to deny Ms....