Reichman v. Bureau of Affirmative Action

• Decision Date: 29 March 1982
• Docket Number: Civ. A. No. 78-767.
• Citation: 536 F. Supp. 1149
• Parties: Ruth REICHMAN, Plaintiff, v. BUREAU OF AFFIRMATIVE ACTION, et al., Defendants.
• Court: U.S. District Court — Middle District of Pennsylvania

536 F. Supp. 1149

Ruth REICHMAN, Plaintiff, v. BUREAU OF AFFIRMATIVE ACTION, et al., Defendants.

Civ. A. No. 78-767.

United States District Court, M. D. Pennsylvania.

March 29, 1982.

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Richard L. Berkman, Kathryn Delanty Portner, Dechert, Price & Rhoads, Philadelphia, Pa., for plaintiff.

Elisabeth S. Shuster, Norman J. Watkins, Kathleen McGrath, Allen C. Warshaw, Deputy Attys. Gen., Edward G. Biester, Jr., Atty. Gen., Pa. Dept. of Justice, Harrisburg, Pa., for defendants.

OPINION

HERMAN, District Judge.

I. INTRODUCTION

Plaintiff, Ruth Reichman, initiated this action against Defendants alleging employment discrimination on the basis of race, color, sex and religion. Specifically, she claimed that the actions, policies and practices of the Defendants violated Title VII of the Civil Rights Act of 1964, 42 U.S.C. ?? 2000e to 2000e-5 and her constitutional rights as secured by 42 U.S.C. ?? 1981, 1983, 1985(3) and 1986. In addition, she alleged pendent state claims for defamation and violation of her rights under the Pennsylvania Human Relations Act, 43 P.S. ?? 951-963. The complaint named four Defendants: the Bureau of Affirmative Action ("BAA"), the agency responsible for the affirmative action program within the Commonwealth of Pennsylvania;¹ three black individuals in their capacities as state officials, Daniel P. Harley,² Daniel Sawyer,³ and James N. Wade;⁴ and the same three persons in their individual capacities. All of these individual Defendants acted under color of state law when they took employment actions affecting Plaintiff, including their participation in her furlough with the exception of the sex harassment allegations asserted by Plaintiff against Defendant Harley.⁵

Plaintiff filed a charge of discrimination with the EEOC on or about January 6, 1978, against Defendants in this case, which charge alleged, inter alia, that the BAA had a past and continuing pattern and/or practice of discrimination based on race and color in hiring, promotion, discipline, discharge, and other terms and conditions of employment which affected Plaintiff both as an individual and as a representative of other Caucasians. She also maintained that Defendants' decision to furlough her was discriminatorily based on race, color, sex, religion, national origin and handicap (no evidence of any handicap was ever produced) and in retaliation for her exercise of her constitutional rights.⁶ The EEOC did not pursue an investigation of Plaintiff's charge and on May 23, 1978, the United States Department of Justice issued Plaintiff a "Notice of Right to Sue" based on the charges of discrimination which Plaintiff had filed with the EEOC.⁷ On August 7, 1978, Plaintiff filed a timely complaint in this court as permitted by her right to sue letter and her earlier charge with the EEOC. The non-jury trial in this action lasted twelve days. Subsequently, parties submitted proposed findings of fact, conclusions of law, and supporting briefs. In addition, Plaintiff filed a motion for certification of a Rule 23(b)(2) class, which was fully briefed by the parties. Thereafter, on March 27, 1981, the court heard oral arguments in this matter. After studying of the briefs, hearing of oral argument, and the full consideration of all of the evidence and law relative thereto, the court makes the following findings of fact and conclusions of law.

II. STATEMENT OF FACTS

Plaintiff, Ruth Reichman, is female, Jewish and Caucasian. She was employed by BAA, which is part of the Pennsylvania Governor's Office of Administration ("OA"), from October 28, 1976 until she was furloughed effective on November 10, 1977. While at BAA, Plaintiff was Chief of its Program and Technical Assistance Division ("PTA") and was an Equal Employment Opportunity Development Specialist V ("EODS V"). When Plaintiff started her job as Chief of PTA, she supervised Iris Cooley, a black EODS III; Kenneth O'Vell, a white EODS III, and Freda Keane, a white Clerk/Steno II. At that time, three EODS III vacancies existed in her division. On January 27, 1977, Lang Lewis, a black male who was classified as a Public Administration Trainee in the Legal Division was transferred to Reichman's division. On March 22, 1977, Jean Becker, a white female who was classified as an EODS IV, was also transferred to the PTA Division working under Plaintiff's supervision.⁸

Since its inception in May of 1976, to the time of trial, twenty-three persons consisting of twelve Blacks and eleven Whites had been employed at BAA.⁹ Although Gregg Thompson, a black male, worked for a period of time in BAA, he was not a BAA employee and he was not on the BAA payroll. While he was at BAA, he remained on the complement of the Governor's Office of Manpower. His salary was paid from federal CETA funds and his performance evaluations were still prepared by that office, not BAA.¹⁰ Although one Caucasian was demoted while Plaintiff was at BAA,¹¹ Defendant Harley, a black man, took numerous positive steps to hire and promote white persons. While he was the Director of BAA, Harley hired Louise Oncley, a white female, to serve as Chief of the Planning, Research and Evaluation Division ("PRE"), starting work on October 28, 1976; Kenneth O'Vell, a white male, as an EODS II in the PTA Division, starting work on October 28, 1976; Freda Keane, a white female, as a Clerk/Steno II in the PTA Division, starting work on November 8, 1976; Sandra Synder, a white female, as a Clerk/Typist II as secretary to the Special Assistant, starting work on November 8, 1976; Robert Ford, a white male, as Assistant Director, starting work on January 6, 1977; and Julia Troutman, a white female, as a Clerk/Typist II in the Legal Division, starting work on April 14, 1977. In addition, Harley and Sawyer promoted the following white individuals: Freda Keane, a white female, from Clerk/Steno II to Clerk/Steno III, on July 5, 1978, and to an Administrative Assistant I on October 1, 1979; Sandra Synder, a white female, from Clerk/Typist II to Clerk/Steno II in October 1977; Julia Troutman, a white female, from Clerk/Typist II to Clerk/Typist III on October 1, 1979; and further encouraged Phyllis Riddle's placement in an EODS trainee position, following which she was promoted to an EODS II position in October 1978.¹² Furthermore, while Plaintiff was at BAA, two black professionals were promoted. Iris Cooley was promoted from an EODS III to an EODS IV and Lang Lewis was promoted from a Public Administration Trainee ("PAT") to an EODS II.¹³ Lewis' position as a PAT was a probationary, entry level position. His promotion to an EODS II was not only routine, but required after the successful completion of his probationary period.¹⁴

A. Reichman's Furlough

Prior to June 30, 1977, it became apparent that the 1977-78 Pennsylvania budget would not be passed before the beginning of that fiscal year. As a result of the fiscal problems created by the late passage of the budget, there were two "rounds" of furloughs. The first round of furloughs occurred in approximately July and August of 1977 after the start of the fiscal year but before a budget had been passed. The second round of furloughs resulted from the rebudget (i.e., the development of a budget based on the actual appropriations) and occurred in approximately October and November of 1977. The first round of furloughs was initiated when the Commonwealth's Budget Secretary issued a directive which ordered Commonwealth agencies to prepare contingency plans to be implemented in the event the budget was not passed by June 30, 1977. In response to the Budget Secretary's Directive, the OA projected that it would have to reduce its budget for non-augmented bureaus,¹⁵ which included BAA, by approximately $500,000. Defendant Wade, Secretary of the Office of Administration, decided that each bureau within OA would share equally in the projected budget reduction based on the percentage of OA's budget that the bureau received. A projected budget reduction was assigned for each bureau. In order to achieve the projected budget reduction, each bureau was ordered to cut back on spending immediately and, additionally, to prepare contingency plans for reducing personnel.

Defendant Harley prepared a contingency plan for achieving BAA's projected budget reduction of approximately $35,000. It called for the abolishment of the Attorney II position, which had been vacated on May 25, 1977, at a savings of $20,232.62, the furlough of the Assistant Director at a savings of $14,939.31, and savings from an employee on maternity leave of $5,663.50.¹⁶ According to testimony of Terrence L. Spaar, former Executive Assistant to Defendant Wade, BAA's contingency plan was improper in that it overestimated the savings resulting from the proposed action because of a misapplication of two budgetary and personnel rules. First, vacant positions are budgeted only for one-half of the salary and benefits for the fiscal year. Thus, since the Attorney II slot was vacant and had been budgeted only at one-half the salary and benefits, its abolishment would have saved only $10,000 not $20,332.62 as suggested by Harley's contingency plan. Second, budget savings cannot include savings from individuals on maternity leave because benefits continue to be paid to those individuals and because they have a right to return at any time. Therefore, no savings could be relied on from an employee being on maternity leave and there could not be a savings of $5,663.50 as suggested by Harley.¹⁷

Although Defendant Harley's contingency plan recommended the abolishment of the Attorney II vacancy, Defendant Wade, Secretary of OA, instructed Harley that the Attorney II vacancy should not be abolished because it was considered to be important to the future operation of the affirmative action program.¹⁸ This decision was made even though Administrative Circular No. 77-101 stated that...