Opinion
Civ. No. H-97-3154.
August 1999.
MEMORANDUM AND ORDER
In this civil action brought under Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. § 2000e, et seq., three employees of the Social Security Administration are seeking damages and other relief. Named as defendants are Kenneth S. Apfel, Commissioner of the Social Security Administration (the "SSA") and Donna Shalala, Secretary of the Department of Health and Human Services. Plaintiffs, who are white males, assert that they have been subjected to illegal reverse discrimination as a result of the SSA's implementation of affirmative action policies and programs.
Although Paragraph 1 of the complaint, in describing the "NATURE OF THE CASE," suggests that defendants have also violated the Age Discrimination in Employment Act (the "ADEA"), 29 U.S.C. § 623,et seq., and the Fifth Amendment to the United States Constitution, neither Count I nor Count II of the complaint presents such claims. Accordingly, the only claims before the Court are those alleged in Count I and Count II under Title VII.
In particular, they claim that SSA officials, acting pursuant to the SSA's Affirmative Employment Plans for Women and Minorities (the "AEPs"), have violated Title VII by discriminating against them in their promotions and ratings, performance appraisals and cash and non-cash awards.
They have also argued that defendants' AEPs violate their Fifth Amendment rights. However, as this Court previously noted in Bostron v. Apfel, 182 F.R.D. 188, 191 n. 3 (D. Md. 1998), no separate Fifth Amendment claim has been asserted in either Count I or Count II of the complaint.
Pretrial proceedings in this case have been extensive. In its Opinion of August 24, 1998, this Court concluded that plaintiffs were not entitled to certification of this case as a class action under Rule 23, F.R.Civ.P. Bostron v. Apfel, 182 F.R.D. 188 (D. Md. 1998) (Bostron I). Discovery then proceeded pursuant to the Court's Scheduling Order of August 24, 1998 and its Revised Scheduling Order of September 24, 1998. Numerous discovery disputes arose while discovery was under way. In its Memorandum and Order of February 11, 1999, the Court granted plaintiffs' motion to compel in part and denied it in part.
Discovery in the case has now been completed; the parties have filed dispositive motions, and plaintiffs have filed another class action motion. Presently pending before the Court are the following:
(1) Plaintiffs' motion for summary judgment;
Although termed a "Motion for Summary Judgment," plaintiffs' pending motion is in fact a motion for partial summary judgment and will be treated as such herein.
(2) Defendants' motion for summary judgment; and
(3) Plaintiffs' second motion for class certification.
Lengthy memoranda and voluminous exhibits have been submitted by the parties in support of and in opposition to these three pending motions. A massive record has been presented, and oral argument has been heard in open court. For the reasons stated herein, plaintiffs' motion for partial summary judgment and plaintiffs' second motion for class certification will both be denied, and defendants' motion for summary judgment will be granted in part and denied in part.
I Claims and Background Facts
Plaintiffs claim systematic discrimination by defendants against white males employed at the SSA. In particular, they allege in Count I that SSA officials, acting pursuant to AEPs, violated Title VII by discriminating against plaintiffs in terms of promotions and ratings, performance appraisals and cash and non-cash awards. They further claim in Count II that SSA officials unlawfully retaliated against them for filing Equal Employment Opportunity ("EEO") complaints.
On October 6, 1987, the Equal Employment Opportunity Commission (the "EEOC") issued Management Directive 714 ("MD-714"), which requires federal agencies to prepare and submit "multi-year affirmative employment program plans" and annual progress reports and plan updates. MD-714 requires federal agencies to evaluate existing affirmative employment practices and procedures, identify problems and barriers to employment for various Equal Opportunity groups ("EO groups") and develop (1) general objectives to resolve any problems, (2) specific "action items" necessary to achieve the objectives and (3) target dates for the completion of each objective and action item.
Agencies must also make numerical comparisons between workforce and civilian labor force ("CLF") data, and, where that comparison reveals a "conspicuous absence" or "manifest imbalance" for a particular EO group, an agency "may develop reasonable numerical objectives (goals) to address the absence or imbalance." MD-714 states that these numerical objectives "do not require or mandate the selection of unqualified persons or preferential treatment based on race, national origin, or sex."
After developing a multi-year plan, each agency must prepare and submit an annual accomplishment report and update. Specific statistical and other data are required to be included in these reports. Agency heads are responsible for "[e]nsuring that all Managers under the Senior Executive Service are held accountable for the achievement of affirmative employment objectives . . . established by the agency."
Consistent with MD-714, the SSA has since 1988 developed and implemented multi-year AEPs and has prepared and submitted annual reports. In its AEPs, the SSA has identified barriers to the hiring, promotion and retention of various EO groups and has taken steps to remove those barriers. As permitted by MD-714, the SSA has also set numerical objectives for the employment of EO groups at various positions and grade bands. In order to reach those objectives, the SSA included in their AEPs action items requiring the preparation and distribution of "vacancy profiles" by officials making hiring and promotion decisions.
The first AEP covered the years 1988-1992; the second, 1993-1997; and the third, 1998-2002.
For positions in the GS-13 to GS-15 level grade band, the Office of Personnel (the "OPE") provides the Office of Civil Rights and Equal Employment Opportunity (the "OCREO") with information relating to a vacancy announcement at least one week before the announcement is posted. OCREO in turn prepares a statistical report which includes a workforce profile for the component and grade level to be filled, relevant CLF statistics, and a table containing under representation indices ("URI") for the various EO groups. This report is forwarded to the OPE, which then provides the statistical report to the selecting official along with a list of the candidates who meet the minimum requirements for the position, the so-called "best qualified list". The report identifies EO groups that are under represented for the relevant position and specifies whether the job is a "targeted position" for a particular group. These vacancy profiles contain the following instructions:
If a vacancy is one for which an under representation exists and is a targeted occupation as identified in the Affirmative Action Plan, and the best qualified list contains highly qualified candidates which would reduce the under representation, then the selecting official must give serious consideration to those individuals who would reduce the under representation.
When employing these guidelines, managers should keep in mind that it is the responsibility of every selecting official to ensure that the best person is selected to fill every vacancy.
The SSA encourages upper level managers to meet numerical goals for under represented or conspicuously absent EO groups. According to the SSA's Equal Employment Opportunity Tracking Report, senior managers are given a "plus or [minus] performance indicator" based on the manager's "performance in each of the personnel actions for the EO groups." The 1988 AEP Accomplishment Report for fiscal year 1988 contained the following language:
Commissioner Hardy's expectation is that each SES member: Demonstrate a personal commitment to civil rights and equal opportunity by ensuring that equal opportunity and affirmative action principles are used in the full range of personnel actions, including new hires, promotions, awards, disciplinary actions and training instances. Performances are appraised based on data related to these various actions.
Dorcas Hardy was Commissioner of Social Security until 1989, when she was replaced by Gwendolyn King.
In her Update Report for the 1990 fiscal year, Commissioner King stated that she would "hold[ ] each member of SSA's senior staff accountable for assuring equity and balance in all of their personnel decisions." In her deposition, she stated that this accountability extended to meeting targeted numerical goals for minority groups. Associate Commissioners apparently understood this as well and placed emphasis on managers' progress toward numerical goals.
On July 19, 1995, in response to the Supreme Court's decision in Adarand Constructors, Inc. v. Pena , 515 U.S. 200 (1995), President Clinton issued a "Memorandum for Heads of Executive Departments and Agencies" (the "Memorandum"). The Memorandum directed that all affirmative action programs utilizing race or gender be eliminated or reformed if such programs, inter alia, created a quota, created reverse discrimination, or continued after their equal opportunity purposes had been achieved. The Memorandum also required federal agencies to evaluate and report on their existing affirmative action programs.
The SSA subsequently issued a report entitled "Evaluation of Social Security Administration Affirmative Action Programs." This document evaluated the SSA's existing AEP in light of theAdarand decision and concluded that it was constitutional because it was narrowly tailored to address specific congressional findings of past discrimination in federal employment. The report also observed that the distribution of vacancy profiles containing racial and gender statistics and target employment levels for GS 13-15 level positions was proper because it was "[b]ased on SSA's explicit findings that minorities and women are under represented at the highest grade levels" and because the information helps selecting officials "to target their recruiting effort toward under represented groups." This document also observed that "[w]omen and African-Americans are no longer under represented in the SSA's workforce, and whatever under representation there might be at the higher grades is improving."
Female and black employees are apparently now over represented in the SSA workforce, i.e., their representation at SSA is greater than their percentage of the National Civilian Labor Force ("NCLF"). For example, for FY 1997, women comprised 72.7 percent of the SSA GS-1-15 workforce compared to a NCLF of 45.7 percent; blacks comprised 27.3 percent of the SSA GS-1-15 workforce compared to a NCLF of 10.4 percent.
Although the highest percentages of women, blacks and other minorities are concentrated in the lower grade bands, the representation of these groups in the higher grade bands, GS-9-12 and GS-13-15, has increased significantly since 1988 when the SSA's first AEP was implemented, and such representation is approaching or has exceeded the NCLF for each group. The AEP Accomplish Report for fiscal year 1997 provides the following statistics for the GS-13 to 15 grade band:
FY 1988 FY 1997 NCLF '97
Women 23.8 41.2 45.7
Blacks 9.5 14.3 10.4
All Minorities 13.7 21.1 22.1
Plaintiffs and defendants have submitted conflicting expert reports interpreting this and related data. While the experts employ different methods of statistical analysis and make conflicting interpretations, both reports note statistical differences between the promotion rates of white males and non-white males in the GS-12 to 15 grade levels, and suggest that these difference favor non-white males. However, in his analysis of the statistics, defendants' expert, Dr. Daniel Naiman, has stated that the data which he has reviewed does not conclusively show discrimination against white males employed by the SSA.
The background facts pertaining to plaintiffs' employment with the SSA were previously recounted in some detail and will not be repeated here. See Bostron I, 182 F.R.D. 189-191. Plaintiff Michael H. Bostron contends that because of his sex and race he has been denied numerous promotions sought by him at various times during his employment at the SSA. Plaintiff Maurice R. DuBois contends that because of his sex three applications for promotion filed by him have been denied. Claiming that he has been denied the opportunity to make the best qualified list for one promotional opportunity, plaintiff John E. Boyer asserts discrimination on the basis of his sex as a result of the SSA's giving a disproportionate number of outstanding ratings to female employees with an adverse impact upon his opportunity to obtain the promotion in question.
In Count I, all three plaintiffs seek damages and other relief under Title VII for intentional employment discrimination based upon sex and race. It is alleged in Count I that SSA's pattern and practice of promoting a disproportionate percentage of female and minority applicants constituted intentional discrimination against plaintiffs. In Count II, plaintiffs Bostron and DuBois seek recoveries under Title VII for unlawful retaliation subsequent to the filing by them of administrative civil rights complaints.
II Plaintiffs' Second Motion for Class Certification
In its Opinion in Bostron I, this Court denied plaintiffs' motion for class certification. Plaintiffs have once again asked this Court to certify this case as a class action. They have redefined the proposed class in an effort to meet the requirements of the applicable law as outlined in Bostron I.
In their earlier proposed Class Certification Order, plaintiffs asked that this suit be maintained as a class action on behalf of the following class of plaintiffs:
All White male employees of the Social Security Administration employed at the GS-12 and GS-13 levels as of the date of class certification who were not selected or promoted, or were otherwise subjected to disparate treatment in regard to performance appraisals, awards, bonuses and training as part of the SSA's alleged subjective personnel system, which discriminates against White males.
Plaintiffs now seek certification of the following class of plaintiffs:
All White males employed from 1982 to the present at the Social Security Administration Headquarters in Woodlawn, Maryland employed at the GS-12, GS-13 and GS-14 levels who applied for, but were not selected for promotion to the next highest grade band.
The principles applicable when a court is asked to certify a class action under Rule 23 were set forth in some detail inBostron I. That Opinion represents the law of the case and is controlling at this later stage of these proceedings. The doctrine of the law of the case posits that, when a court decides upon a rule of law, that decision should continue to govern the same issues in subsequent stages in the same case. Christianson v. Colt Indus. Operating Corp., 486 U.S. 800, 815-16 (1988);United States v. Aramony, 166 F.3d 655, 661 (4th Cir. 1999). In particular, the principles of General Telephone Co. v. Falcon, 457 U.S. 147, 161 (1982) and Stastny v. Southern Bell Tel. Tel. Co., 628 F.2d 267 (4th Cir. 1980) must be applied here. Based on those decisions and the facts of record here, this Court has concluded, after undertaking the "rigorous analysis" required by Falcon, that plaintiffs have failed to meet their burden of showing that this case should proceed as a class action. Plaintiffs will be permitted to go to trial on their individual claims, but they may not litigate this case as representatives of the class defined in their revised Class Certification Order.
By restricting the proposed class to SSA's Woodlawn headquarters and to challenges to the denial of promotional opportunities, plaintiffs seek to satisfy the deficiencies noted by the Court in Bostron I. Although the class which plaintiffs now seek to have certified is narrower than the one discussed inBostron I, plaintiffs have still failed to satisfy the Rule 23 prerequisites of commonality and typicality. The proposed class would include all white males employed from 1982 until the present. Plaintiffs would not be proper representatives of such a class because the promotions sought by them did not become available until later years. The SSA's AEPs and action items, relied upon so heavily by the plaintiffs as evidence of illegal discrimination, were not implemented until 1988 at the earliest. Furthermore, plaintiffs have not here satisfied the typicality requirement of Rule 23 because the proposed class would include many individuals who clearly would not be able to establish aprima facie claim of reverse discrimination under Title VII. Those individuals who do not meet the typicality requirement include the SSA employees who did not make the best qualified list, the employees who were denied a promotion which was given to a white male and the employees who did not exhaust administrative remedies. Moreover, the decisions of many different selecting officials would be involved, and those decisions would undoubtedly require an inquiry into the unique qualifications of each different applicant.
Plaintiffs have argued that it was their intention that the class should be limited to white males who had made the best qualified list. However, there is no such limitation in plaintiffs' description of the proposed class submitted to the Court for certification.
Plaintiffs argue that their pattern and practice evidence of systematic discrimination against white males seeking promotions at the GS-12 to 14 grade levels renders a class action an appropriate vehicle for the resolution of employees' claims. A similar argument was rejected by this Court in Bostron I. The mere fact that allegedly systematic race or sex discrimination forms the basis for plaintiffs' claims does not relieve plaintiffs of the obligations imposed by Rule 23 to prove "the specific fitness, on its own facts" of the Title VII case in question.Stastny, 628 F.2d at 273; Bostron I, 182 F.R.D. at 193. An approach similar to that taken by plaintiffs in this case was rejected by the Supreme Court in Falcon. 457 U.S. at 157-58.
For these reasons, plaintiffs' second motion for class certification will be denied.
III Plaintiffs' Motion for Partial Summary Judgment
By way of their motion for partial summary judgment (mischaracterized as a motion for summary judgment), plaintiffs seek only injunctive relief and attorneys' fees. They ask this Court to enter an injunction which would, inter alia, order the SSA to cease and desist implementation and administration of its existing AEP and prohibit the SSA from discriminating in the determination of promotions, particularly with respect to the promotion process for positions in the GS-13 to GS-15 grade bands. In support of their motion, plaintiffs argue that the SSA's affirmative action policies and programs contained in their AEPs are unconstitutional under Adarand.
The relief sought in the complaint is much more extensive. Besides injunctive relief and attorneys' fees, plaintiffs in their complaint have requested back pay, compensation for diminished retirement benefits and compensatory damages.
The principles to be applied by this Court in considering a motion for summary judgment under Rule 56, F.R.Civ.P., are well established. A party moving for summary judgment or partial summary judgment bears the burden of showing the absence of any genuine issue of material fact and that it is entitled to judgment or partial summary judgment as a matter of law. Barwick v. Celotex Corp., 736 F.2d 946, 958 (4th Cir. 1984).
In Phoenix Sav. Loan, Inc. v. Aetna Cas. Co., 381 F.2d 245, 249 (4th Cir. 1967), the Fourth Circuit Court of Appeals summarized the principles applicable under Rule 56 as follows: "It is well settled that summary judgment should not be granted unless the entire record shows a right to judgment with such clarity as to leave no room for controversy and establishes affirmatively that the adverse party cannot prevail under any circumstances."Id. Hence, the party opposing a motion for summary judgment is entitled to all favorable inferences which can be drawn from the evidence. See, e.g., Adickes v. S.H. Kress Co., 398 U.S. 144, 158-59 (1970); Cram v. Sun Life Ins. Office, Ltd., 375 F.2d 670, 674 (4th Cir. 1967).
The party moving for summary judgment has the burden of establishing that there is no genuine issue of material fact.Barwick, 736 F.2d at 958. This burden is met by consideration of affidavits, exhibits, depositions and other discovery materials.Id. Nevertheless, "[t]he facts, and the inferences to be drawn from the facts, must be viewed in the light most favorable to the party opposing the motion." Ballinger v. North Carolina Agric. Extension Serv., 815 F.2d 1001, 1004-05 (4th Cir. 1987), cert.denied, 484 U.S. 897 (1987) (citing Ross v. Communications Satellite Corp., 759 F.2d 355, 364 (4th Cir. 1985)).
Following its review of the record here, this Court has concluded that plaintiffs' request for the entry of an injunction against defendants cannot be resolved before trial by way of the pending motion for partial summary judgment. Where facts are disputed, a court, in considering a plaintiff's motion for summary judgment, must accept the defendant's version of the events if supported by deposition testimony, exhibits or other documentary evidence. See Magnuson v. Peak Technical Servs., Inc., 808 F. Supp. 500, 504 (E.D. Va. 1992). Insofar as plaintiffs' claims of discrimination are concerned, there are a number of disputed questions of material fact which cannot now be determined on this record as a matter of law.
Relying on Adarand, plaintiffs argue that the SSA's AEPs violate the equal protection guarantees of the Fifth Amendment (1) because the SSA lacks a compelling interest for their affirmative action policies and programs and (2) because the SSA's policies and programs are not narrowly tailored. However, since the plaintiffs are here seeking relief solely under Title VII, the principles to be applied in this case are statutory and not constitutional. In Johnson v. Transportation Agency, Santa Clara County, 480 U.S. 616 (1987), the Supreme Court applied the standard of review established in United Steelworkers v. Weber, 443 U.S. 193 (1979), noting that "the fact that a public employer must also satisfy the Constitution does not negate the fact that the statutory prohibition with which the employer must contend was not intended to extend as far as that of the Constitution." Id. at 626-28 and n. 6. (emphasis in original); accord Taxman v. Board of Edu. of the Township of Piscataway, 91 F.3d 1547, 1563-65 (applying the Johnson/Weber analysis to a Title VII challenge to an affirmative action program). As the Third Circuit noted inTaxman, "equal protection standards may be imported into Title VII." Id. at 1560-62. However, the ultimate burden remains with the plaintiffs to demonstrate the unconstitutionality of an affirmative action program, Wygant v. Jackson Board of Educ., 476 U.S. 267, 277-78 (1986), and there is "no basis for a different rule regarding a plan's alleged violation of Title VII." Johnson, 480 U.S. at 626.
Thus, plaintiffs are entitled to rely on the AEPs of the SSA and argue that they constitute proof that the SSA maintains an unlawful policy of discrimination against white males. However, this proof is not conclusive. There is other evidence of record here to support defendants' contention that the legitimate, nondiscriminatory reasons advanced by them for their employment decisions were not pretextual.
In this Title VII case, plaintiffs must satisfy the burden of proof scheme set forth in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). Under that scheme, plaintiffs must first establish a prima facie case of discrimination in violation of Title VII. Id. at 802. If they do so, the burden then shifts to the defendants to articulate a "legitimate, nondiscriminatory reason" for the employment action. Id. If defendants provide such a reason, the burden then shifts back to the plaintiffs who bear "the burden of proving that the employer's articulated reason is a pretext for discrimination." Lowery v. Circuit City Stores, Inc., 158 F.3d 742, 760 (4th Cir. 1998), vacated on other grounds, 1999 W.L. 407481 (U.S. June 24, 1999).
Plaintiffs have argued that the method of proof set forth in International Bhd. of Teamsters v. United States, 431 U.S. 324, 35-36 (1977) should be controlling in this case. However, the Teamsters approach is applicable only in a class action. Since this Court has declined to certify a class in this case, it is the McDonnell Douglas method of proof which must be followed by the parties.
On this record, the Court is satisfied that the plaintiffs have established a prima facie case of discrimination and that defendants have articulated legitimate, nondiscriminatory reasons for the employment actions taken. The key issue then is whether plaintiffs have as a matter of law satisfied their burden of proving that defendants' articulated reasons for the employment actions were a pretext for intentional discrimination. The Court concludes that there are disputed questions of material fact as to this issue. As noted in Whalen v. Rubin, 91 F.3d 1041, 1045 (7th Cir. 1996), the "mere existence of an affirmative action policy" is insufficient to prove intentional discrimination. Citing Weber, the Fourth Circuit recently noted that "the Supreme Court has determined that in certain circumstances an employer may voluntarily establish an affirmative action plan without violating Title VII." Smith v. Virginia Commonwealth University, 84 F.3d 672, 675 (4th Cir. 1996). The parties dispute whether the necessary circumstances are present in this case. When the facts relied upon by the defendants and the inferences to be drawn therefrom are viewed in a light most favorable to the defendants, this Court concludes that plaintiffs' motion for partial summary judgment must be denied.
IV Defendants' Motion for Summary Judgment (a) Adverse Employment Actions
Relying on Page v. Bolger, 645 F.2d 227, 233 (4th Cir. 1981), defendants contend that most of the actions challenged by plaintiffs do not constitute actionable "adverse employment actions" under Title VII. This Court would agree.
In determining whether there has been discrimination with respect to "personnel actions," a court should focus on the question whether there has been discrimination "in what could be characterized as ultimate employment decisions such as hiring, granting leave, discharging, promoting and compensating." Id. at 233. There are "many interlocutory or mediate decisions" which have no immediate effect upon employment conditions and which were not intended to fall within the proscriptions of Title VII. Id. The only discriminatory actions alleged in Count I of the complaint for which relief is sought by plaintiffs are (1) promotions, (2) performance appraisals, (3) cash and non-cash awards and (4) ratings. Applying the principles of Page, this Court concludes that except for promotions, these personnel actions are not ultimate employment decisions. Rather, since they constitute interlocutory or mediate decisions which had no immediate effect on plaintiffs' employment conditions, they are not separately actionable under Title VII. See Settle v. Baltimore County, 34 F. Supp. 969, 987-89 (D. Md. 1999); Caussade v. Brown, 924 F. Supp. 693, 700-702 (D. Md. 1996); Kortan v. State of California, 5 F. Supp.2d 842, 853 (C.D. Cal. 1998).
Clearly, plaintiffs may present to the jury their claims that they were discriminatorily denied promotions because of their sex and/or race. However, they may not seek damages or injunctive relief based on the other personnel actions alleged in Count I. This is not to say, however, that plaintiffs may not present at the trial evidence of mediate discriminatory employment decisions. Such evidence is relevant to plaintiffs' claim that defendants have engaged in a pattern and practice of discrimination which ultimately resulted in the denial of promotions for which they were qualified. Thus, evidence of discriminatory low performance evaluations, reprimands, exclusions from training programs, handling of plaintiffs' EEO complaints and the like may be introduced at the trial even though not separately actionable under Title VII.
(b) Timeliness of Administrative Action
In seeking summary judgment as to the Count I claim of plaintiff Bostron, defendants contend that, with the exception of some seven positions, he did not properly exhaust his administrative remedies because no EEO counseling requests occurred within the applicable 45-day period after the alleged adverse employment action. Similarly, defendants argue that summary judgment in their favor should be entered as to the Count I claim of plaintiff Boyer because he failed to request EEO counseling concerning any particular non-selection and because he has therefore not exhausted his administrative remedies. There is no merit to either of these contentions.
Pursuant to 29 C.F.R. § 1614.105(a), an employee of the SSA alleging discrimination on the basis of race or sex must, prior to filing a complaint, consult an EEO counselor in order to try to informally resolve the matter. The regulations impose a 45-day time limit after the "effective date" of the challenged action for the counseling request to be made. Whether or not plaintiff Boyer sought EEO counseling is disputed. In his Declaration, Boyer has stated that, although he cannot remember all of the promotional positions for which he applied, he did timely seek counseling for two positions mentioned in vacancy announcements and that he was in fact counseled by Brenda Hammond on June 20, 1994. Although defendants disagree, there is a dispute of material fact as to this issue.
Insofar as plaintiff Bostron is concerned, plaintiffs argue,inter alia, that the doctrine of continuing violation allows the court to consider any untimely failures on his part to request EEO counseling because each alleged violation is part of a larger ongoing discriminatory policy at the SSA. Under the continuing violation theory, if an actual violation has occurred within the requisite time period and if the untimely claims can be related to the timely incident, all the claims may be considered as timely.See Beall v. Abbott Labs., 130 F.3d 614, 620 (4th Cir. 1997). Incidents outside of the statutory window are not time barred if they can be related to a timely incident as a "series of separate but related acts" amounting to a continuing violation. Id., (quoting Jenkins v. Home Ins. Co., 635 F.2d 310, 312 (4th Cir. 1980)).
Since plaintiffs are here relying on evidence of a systematic pattern and practice of discrimination against white males at the SSA, the Court concludes that the doctrine of continuing violation applies in this case. Although, as defendants point out, each non-selection involved different persons at different times and in different factual settings, these non-selections can be viewed as part of an official policy which encourages systematic discrimination against white males seeking promotions. Thus, plaintiffs have here presented proof of a "series of separate but related acts amounting to a continuing violation." Beall, 130 F.2d at 620) (internal quotation marks omitted). Accord Selan v. Kiley, 969 F.2d 560, 565 (7th Cir. 1992) ("[One] theory [of continuing violations] stems from cases in which the employer has an express, openly espoused policy that is alleged to be discriminatory."); Mack v. Great Atl. Pac. Tea Co., 871 F.2d 179, 183-84 (1st Cir. 1989) (applying continuing violation theory to a "systematic" promotional policy); Trevino v. Celanese Corp., 701 F.2d 397, 402-403 (5th Cir. 1983) ("[It is] clear that discriminatory failure to promote represents a continuing violation of Title VII. . . .").
Actionable claims of plaintiff Bostron therefore include non-selections as to which Bostron may have filed untimely requests for EEO counseling. They would not include non-selections as to which counseling requests were never made, inasmuch as the continuing violation doctrine excuses only untimely claims. Moreover, Bostron's actionable claims would not include instances in which he could not meet his burden of establishing a prima facie case of discrimination. These would include positions as to which Bostron did not make the best qualified list or as to which another white male was selected.
For these reasons, the Court concludes that plaintiffs Boyer and Bostron are not barred from proceeding to trial on their actionable claims because of their failure to exhaust administrative remedies.
(c) Count I — Intentional Employment Discrimination
In seeking summary judgment in their favor under Count I as to the claims of all three plaintiffs, defendants argue (1) that plaintiffs have not established a prima facie case under theMcDonnell-Douglas burden of proof scheme and (2) that in any event plaintiffs have not shown that the non-discriminatory reasons for the employment action advanced by defendants were a pretext for intentional discrimination. On the record here, this Court concludes that these questions cannot be determined at this stage of these proceedings as a matter of law.
In order to establish a prima facie case of discriminatory failure to promote, each plaintiff must show (1) that he is a member of a protected group; (2) that he applied for the position in question; (3) that he was qualified for the position and (4) that he was rejected for the position under circumstances giving rise to an inference of unlawful discrimination. Carter v. Ball, 33 F.3d 450, 458 (4th Cir. 1994); McNairn v. Sullivan, 929 F.2d 974, 977 (4th Cir. 1991). Satisfaction of the first two elements of this test is not disputed. As the Supreme Court noted inMcDonald v. Sante Fe Trail Transp. Co., 427 U.S. 273, 280 (1976), white males are protected by Title VII. Evidence of record indicates that plaintiffs did in fact apply for open promotional positions.
Defendants argue here that plaintiffs have failed to satisfy the third prong of the test because each of them was not qualified for the position in question. The Court would disagree. The third prong of the test requires merely that each plaintiff show that he was minimally qualified for the position. See Sheridan v. DuPont deNemours Co., 100 F.3d 1061, 1084 (3rd Cir. 1996). By their presence on the best qualified list, plaintiffs Bostron and DuBois have met that requirement. Plaintiff Boyer has introduced evidence indicating that he was qualified for the one position sought by him and that, although he did not make the best qualified list for that position, it was defendants' discriminatory acts which prevented him from making the list.
There is likewise no merit to defendants' argument that plaintiffs failed to meet the fourth prong of the test. To satisfy this requirement, plaintiffs need merely show that the position was filled by someone other than a white male. See Lowery, 158 F.3d at 760; Carter, 33 F.3d at 458 (citing Patterson v. McLean Credit Union, 491 U.S. 164, 186-87 (1989)). This they have done.
There can be little question here that defendants have articulated legitimate, non-discriminatory reasons for failing to promote each of the plaintiffs. The critical inquiry in this case therefore concerns the issue of pretext. The question presented is whether plaintiffs have produced enough evidence to create a dispute of material fact as to whether defendants' articulated reasons are pretextual. The Fourth Circuit has adopted a "pretext-plus" approach to this inquiry, observing that:
[T]o survive a motion for summary judgment under the McDonnell Douglas paradigm the plaintiff must do more than merely raise a jury question about the veracity of the employer's justification. The plaintiff must have developed some evidence on which a juror could reasonably base a finding that discrimination motivated the challenged action.Vaughan v. MetraHealth Companies, 145 F.3d 197, 202 (4th Cir. 1998).
The Court is satisfied on this record that the key issue of pretext in this case cannot be determined as a matter of law. On the one hand, defendants have submitted statements from a number of selecting officials in which they state, for example, that the eventual selectee had a better score than the plaintiff or had greater expertise, or that the selecting official was simply more familiar with the selectee's prior work. On the other hand, plaintiffs have produced evidence indicating that race and gender were given undue weight when promotional decisions were made at the SSA. Viewed in a light favorable to the plaintiffs, there is evidence indicating (1) that the SSA has implemented and continues to implement affirmative action promotional policies which violate Title VII, (2) that selecting officials were aware of these policies and were held accountable for implementing them, and (3) that such policies affected overall promotion patterns at the SSA. It may properly be inferred from this evidence that there was a link between the SSA's affirmative action policies and the challenged employment decisions. Evidence produced by plaintiffs of a pattern and practice of discrimination and material disputes of fact concerning plaintiffs' qualifications for the positions at issue prevent this Court from entering summary judgment in favor of defendants as to Count I of the complaint.
(d) Count II — Unlawful Retaliation
Defendants also seek summary judgment as to the claims of the two plaintiffs who seek relief under Count II of the complaint. According to defendants, the evidence produced by plaintiffs is not sufficient to establish a prima facie case of retaliatory discrimination. The Court would agree.
Only plaintiffs Bostron and DuBois have asserted claims in Count II of the complaint.
To state a prima facie case of retaliation, a plaintiff must show (1) that the employer engaged in a protected activity such as filing an EEO complaint; (2) that the employer acted adversely against the plaintiff; and (3) that the protected activity was causally connected to the employer's adverse action. Abbott Laboratories, 130 F.3d at 619; Carter, 33 F.3d at 460. Plaintiffs have here failed to satisfy the third prong. They have done little more than assert that they were denied promotions after filing EEO complaints and that a statement of an SSA official establishes a causal link between such filings and the adverse employment actions taken. At a meeting of the Hispanic Affairs Advisory Committee held in the Denver, Colorado regional office of the SSA in December of 1995, Miguel Torrado, Director of the OCREO, said that "if you file an [EEO] complaint, you can kiss your career goodbye . . . [and] the agency will fight you like hell." Torrado's comments were reported in the January, 1996 edition of the SSA Union Newsletter.
Plaintiffs' reliance on Torrado's stray comment is misplaced. Most of the promotional decisions challenged by Bostron were made before December of 1995. Furthermore, there is no evidence linking what Torrado said with any of the employment decisions made after that date. Torrado's single, isolated comment cannot be considered sufficient proof of a pattern and practice of discriminatory retaliation. Moreover, evidence does not exist indicating that the various selecting officials in fact retaliated against the plaintiffs or that they were required to follow a policy discriminating against plaintiffs because they had filed EEO complaints.
For these reasons, defendants' motion for summary judgment will be granted as to Count II of the complaint.
V Conclusion
For the reasons stated herein, this case will not proceed as a class action. Only plaintiffs' individual claims of the discriminatory denial of promotions will be presented to the jury at the trial. Moreover, plaintiffs may not proceed to trial on Count II of their complaint.
This case may proceed to trial only on plaintiffs' individual claims asserted in Count I under Title VII that they have been denied various promotions because of their sex and/or race. At the pretrial conference the plaintiffs, and in particular plaintiff Bostron, will be asked to specifically identify the promotional positions for which he is seeking damages and other relief. The factual inquiry concerning whether each plaintiff was the victim of intentional discrimination will be for the jury to determine at the trial.
Accordingly, it is this ______ day of August, 1999 by the United States District Court for the District of Maryland,
ORDERED:
1. That plaintiffs' second motion for class certification is hereby denied;
2. That plaintiffs' motion for summary judgment, treated herein as a motion for partial summary judgment, is hereby denied; and
3. That defendants' motion for summary judgment is hereby granted in part and denied in part.