Nitterright v. Claytor
Decision Date | 23 May 1978 |
Docket Number | Civ. A. No. 76-0998. |
Citation | 454 F. Supp. 130 |
Parties | Beverly H. NITTERRIGHT, Plaintiff, v. W. Graham CLAYTOR, Jr., Defendant. |
Court | U.S. District Court — District of Columbia |
COPYRIGHT MATERIAL OMITTED
Earl J. Silbert, U. S. Atty., Robert N. Ford, Asst. U. S. Atty., Eric B. Carriker, Sp. Asst. U. S. Atty., Peter J. Levine, Asst. U. S. Atty., Washington, D. C., for defendant.
On March 29, 1974, plaintiff, Beverly J. Nitterright, an Accounting Technician employed by the Department of the Navy, filed a formal administrative complaint of sex discrimination. Plaintiff alleged a failure and refusal on the part of defendant1 to compensate her at a rate of pay equal to that received by male employees performing the same work.
Plaintiff's administrative complaint, as well as her later charge of reprisal because she had filed that complaint, were ultimately resolved by the Appeals Review Board (ARB) of the Civil Service Commission. The ARB found both sex discrimination and reprisal and made specific relief recommendations.
Having exhausted her administrative remedies, plaintiff filed this suit pursuant to Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. § 2000e, et seq. (Title VII) and the Fair Labor Standards Act, 29 U.S.C. § 201, et seq., as amended by the Equal Pay Act of 1963, 29 U.S.C. § 206.
Plaintiff contends that defendant unlawfully failed to pay her at a rate equal to that paid to male employees performing similar work and engaged in acts of retaliation and reprisal because of her administrative sex discrimination complaint. She further contends that the remedial action recommended by the ARB does not make her whole; that defendant failed to take the remedial action that was recommended by the ARB, and that additional relief should be awarded by this Court.
Currently pending is plaintiff's motion for summary judgment, on which memoranda have been submitted by the parties and argument heard.2
Preliminarily, the Court notes that both parties are satisfied that all relevant factual evidence is contained in the administrative record made a part of this action and other documents on file, and that no further discovery is desired.3
Plaintiff was hired as an Accounting Technician on July 28, 1971, in the Command Accounting Branch (CAB), Financial Services Division, Supply and Fiscal Office at the Washington, D. C. Navy Yard, at a GS-5 level. At that time, there were two male employees, Mr. Robert W. French and Mr. William V. Hurte, who were performing substantially similar duties and functions as those assigned to plaintiff. Both men were being paid at the GS-6 level. (Both had formerly been classified as GS-5's, but after competitive advertising in March of 1971 of two newly-established positions in the CAB, both had been selected for the new GS-6/7 slots.)
In May of 1972, having completed one year in the GS-6 grade, both Mr. French and Mr. Hurte were promoted to GS-7. In October of 1972, Mr. French resigned and his position remained vacant. Approximately one year later, in October, 1973, Miss Jean Marcellous was hired as a GS-5 level Accounting Technician, but assigned to the vacant GS-6/7 slot. Plaintiff remained at the GS-5 pay grade.
After unsuccessful personal attempts to either have her position upgraded to her level of duties, or to have the higher-level duties removed from her responsibilities, plaintiff contacted an Equal Employment Opportunity Counsellor in January, 1974. At the suggestion of the EEO Counsellor, a desk audit of the Accounting Technician positions in the CAB was performed. The audit indicated that all three employees, Mr. Hurte, Miss Marcellous, and Ms. Nitterright were performing GS-7 level work and concluded the two women were misassigned.
On March 29, 1974, plaintiff filed her formal EEO Complaint; on April 11, 1974, her higher level duties were removed.
About this same time, the other GS-5 position in the CAB was competitively advertised at an upgraded GS-6/7 classification, and Miss Marcellous, the incumbent, was selected to fill the position.
Following a review and investigation of plaintiff's EEO Complaint, the Commandant, Naval District, Washington, D. C., issued his Proposed Disposition which concluded there was neither discrimination nor harassment. The Proposed Disposition authorized plaintiff's transfer to another division due to the "unpleasant work atmosphere." Dissatisfied with the Proposed Disposition of her complaint, plaintiff requested a hearing and decision by the Secretary of the Navy (Employee Appeals Review Board). On January 7, 1975, an EEO Complaints Examiner held an informal agency hearing.
Meanwhile on November 18, 1974, pursuant to the Commandant's decision, plaintiff was reassigned to the Navy Stock Funds Accounting Section, Field Accounting Branch, Financial Services Division, at a GS-5 level. On March 16, 1975, plaintiff was promoted to a GS-6 in the Navy Stock Funds Accounting Section.
By letter dated June 12, 1975, plaintiff was advised that the Secretary had adopted the recommendations of the Complaints Examiner finding no sex discrimination, but concluding plaintiff had been subjected to harassment and reprisal by a former supervisor. The only corrective action taken pursuant to this final agency decision was to remove a "Letter of Requirement" previously issued to plaintiff from her personnel files and to enroll her supervisor in "supervisory personnel management and EEO training courses." (Plaintiff's Exhibit 11, at 2.) Plaintiff elected to appeal this decision to the ARB.
In early 1976, while plaintiff's appeal was pending before the ARB, the CAB was reorganized. At the time of the reorganization, the existing CAB staff slots were: Acting Head, GS-510-11/12, filled by Mr. J. M. Whitacre; Supervisor, GS-525-9, held by Mr. J. Mosely; and two Accounting Technicians, GS-525-7, held by Mr. Hurte and Miss Marcellous. The reorganization eliminated the Supervisor's position, retained the position of Head, increased the number of Accounting Technicians to three, and reclassified the Accounting Technician positions as GS-525-8. The reclassified positions were competitively advertised, and plaintiff filed an application for one of them.
On May 11, 1976, the ARB notified plaintiff of its decision reversing the Secretary, and concluding that plaintiff had been the victim of sex discrimination.
The relevant findings and conclusions of the ARB are as follows:
The ARB reversed the Secretary's determination and recommended the following relief:4
Pursuant to the ARB decision, plaintiff was retroactively promoted to grade 6, effective August 4, 1974, to her Stock Fund Accounting Section position as an Accounting Technician, and received a back pay award to that same date. On August 17, 1976, she was promoted to a GS-7 position in that same branch which had been dormant, but was reactivated to comply with the ARB decision.
Subsequent to the ARB's decision and the filing of this civil action on June 7, 1976, several additional relevant events have taken place.
On July 2, 1976, plaintiff's application for one of the reclassified GS-7/8 Accounting Technician positions in the newly re-organized CAB was rejected although she had been found "highly qualified." The Acting Head was selected for the GS-510-11/12 position as Head, and incumbents Mr. Hurte and Miss Marcellous were selected to fill two of the three Accounting Technician positions. Plaintiff was not appointed to one of the positions because it was felt that it would be inappropriate "to interject a non-competitive placement into the merit promotion procedures." (Defendant's Exhibit 2, at 2.) Plaintiff immediately filed a Charge of Reprisal for defendant's failure to select her for the vacant GS-7/8 position in the CAB. On September 9, 1976, she was advised of the agency's adverse decision on her Charge of Reprisal.
On June 1, 1977, defendant advertised an opening for an Accounting Technician,...
To continue reading
Request your trial-
Cuevas v. Bill Tsagalis, Inc.
...the amount being within the discretion of the court. (Luther v. Z. Wilson, Inc. (S.D.Ohio 1981), 528 F.Supp. 1166; Nitterright v. Claytor (D.D.C.1978), 454 F.Supp. 130; Snelling v. O.K. Service Garage, Inc. (E.D.Ky.1970), 311 F.Supp. 842; Foster v. Irwin (E.D.La.1966), 258 F.Supp. 709.) In ......
-
Beebe v. United States
...fees and costs is mandatory. Weisel v. Singapore Joint Venture, Inc., 602 F.2d 1185, 1191 (5th Cir. 1979); Nitterright v. Claytor, 454 F.Supp. 130, 149 (D.D.C.1978). Since we have held that plaintiffs are entitled to recover unpaid overtime compensation, they are also entitled to reasonable......
-
Benson v. UNIVERSAL AMBULANCE SERV., INC.
...in cases such as the present in which the employer acted innocently and in good faith in violating the Act. See Nitterright v. Claytor, 454 F.Supp. 130 (D.D.C. 1978); Herman v. Roosevelt Federal Savings & Loan Assoc., 432 F.Supp. 843 (E.D.Mo. 1977), affirmed, 569 F.2d 1033 (C.A.8, 1978); Wh......
-
Melanson v. Rantoul
...damages (i.e. an additional $5,695.04) is mandatory. See 29 C.F.R. ? 790.22 (1981); Laffey, supra, at 464-65, and Nitterright v. Clayton, 454 F.Supp. 130, 140-41 (D.D.C.1978). Should the Court find that the defendants did act in good faith and had reasonable grounds to believe they were not......