Opinion
Civil Action No. 89-0552 (RCL).
October 15, 1996.
Richard A. Salzman, Kator, Scott Heller, Washington, DC, for Plaintiff.
Robert John Kniaz, Frederic Howard Schuster, Bruce Paul Heppen, Gerard Joseph Stief, Arnold Irvine Melnick, David R. Keyser, WMATA, Office of the General Counsel, Washington, DC, James William Morrison, Arter Hadden, Washington, DC, Linda Iris Lazarus, Office of Corporation Counsel, Washington, DC, for Defendant.
ORDER AND MEMORANDUM OPINION I
This case comes before the court on three motions by defendant Washington Metropolitan Area Transit Authority (WMATA). Upon consideration of the filings and oral argument of counsel, the relevant law, and for the reasons more fully set forth below, it is hereby ORDERED that:
1. WMATA's motion for leave to file a post-hearing brief is hereby GRANTED. The Clerk of the Court is directed to file the lodged brief.
2. WMATA's motion to amend its previous legal memorandum opposing plaintiff Jones' motion for partial summary judgment is hereby DENIED.
3. WMATA's motion for judgment as a matter of law or, in the alternative, for a new trial is hereby DENIED.
A separate Memorandum Opinion II, 946 F. Supp. 1023, issued this date, will address the non-jury issues tried before the court.
I. BACKGROUND
Jones filed this action in March 1989 under Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. § 2000e et seq., and the Age Discrimination in Employment Act (ADEA), 29 U.S.C. § 621 et seq., alleging that WMATA had denied her promotions in retaliation for her protected complaints of discrimination and also because of her sex, race and age. WMATA fired Jones in March 1991 and she amended her complaint to claim that her termination, as well as WMATA's subsequent refusal to reinstate her, were retaliatory.
On August 7, 1992 the court partially granted WMATA's motion to dismiss certain of Jones' claims. On August 6, 1993 the court granted Jones' motion for partial summary judgment on her reinstatement claim, ruling that WMATA's refusal to reinstate her after her firing constituted retaliation under Title VII and the ADEA. Jones then narrowed some of her remaining claims, among other things dropping her Title VII allegation of racial discrimination and also foregoing her claim of age discrimination — but not retaliation — under the ADEA.
As narrowed, the case presented three claims of retaliation under the ADEA for the jury to decide: (1) WMATA's refusal to promote Jones to Senior Rail Operations Supervisor, TS-4, in 1987; (2) WMATA's refusal again to promote Jones to the same position when she applied for it in 1988; and (3) WMATA's termination of Jones in March 1991. The parties stipulated that if the jury found liability on any of these three claims, the court would decide the amount of any back pay due. But the jury still had to determine whether any violation was willful, Hazen Paper Co. v. Biggins, 507 U.S. 604, 616, 113 S.Ct. 1701, 1709, 123 L.Ed.2d 338 (1993), as well as the amount of compensatory damages, if any, to be awarded in connection with any findings of retaliation, Moskowitz v. Trustees of Purdue Univ., 5 F.3d 279, 283-84 (7th Cir. 1993). Finally, the jury had to make willfulness and damage determinations in connection with WMATA's refusal to reinstate Jones, which the court had previously determined, was unlawful.
On October 20, 1994, the jury found in favor of WMATA on the 1987 TS-4 claim, but determined that WMATA decisions to reject Jones for promotion to TS-4 in 1988 and to terminate her in March 1991 were the products of retaliation under the ADEA. The jury also decided that both actions were willful and that the refusal to reinstate was willful as well. The jury awarded Jones a total of $50,000 in compensatory damages — $10,000 for the 1988 refusal to promote and $20,000 apiece for the termination and refusal to reinstate.
Because the events in this case predate the Civil Rights Act of 1991, Jones' Title VII claims must be decided by the court. Landgraf v. USI Film Prods., 511 U.S. 244, 114 S.Ct. 1483, 128 L.Ed.2d 229 (1994). First, the court must determine whether the above-mentioned personnel actions violated Title VII, independent of the jury's findings under the ADEA. Second, the court must decide whether the 1987 denial of Jones' promotion to Quality Assurance Inspector, TS-5 — which arises solely under the sex discrimination provisions of Title VII and does not implicate the ADEA — was unlawful. Third, the court must decide issues of relief under both Title VII and the ADEA, including the amount of back pay owed Jones and the amount of liquidated damages due her under the ADEA given the jury's determination that the ADEA violations were willful, 29 U.S.C. § 626 (b). The court must also decide the nature of any injunctive relief due, such as promotion and reinstatement, as well as Jones' request that WMATA and its Assistant General Manager in charge of Rail Transportation, Fady Bassily, be enjoined from further retaliation against her or other WMATA employees who engage in protected EEO activity. Jones also asks for attorneys' fees.
II. WMATA'S MOTION TO FILE A POST-HEARING BRIEF
WMATA requests leave to file a post-hearing brief that addresses two legal issues: (1) Whether under Title VII and the ADEA a defendant has a final opportunity to prove by clear and convincing evidence that an adverse employment action would have occurred even absent retaliatory motive. (2) What standard determines whether an adverse inference attaches to WMATA's loss of employee test scores pertaining to Jones' Title VII claim that she was denied a TS-5 promotion in 1987 because of sex discrimination.
WMATA asks the court to use its inherent powers to permit the post-hearing brief to be filed. Since the time of the hearing, WMATA has had an opportunity to review the case law on adverse inferences and to review the pleadings in Berger v. Iron Workers Reinforced Rodmen Local 201, 843 F.2d 1395 (D.C. Cir. 1988), cert. denied, 490 U.S. 1105, 109 S.Ct. 3155, 104 L.Ed.2d 1018 (1989), regarding burdens of proof in Title VII cases. Jones asks, however, that the motion for leave to file be denied on the ground that WMATA's post-hearing brief contains no new material.
In light of the complexity of the substantive legal issues and the time pressures of both the jury trial and the bench trial, the court grants WMATA's motion for leave to file. Upon inquiry from chambers, counsel for Jones has indicated that he is content with his prior submissions on the underlying issues and does not seek to file a further response on the merits.
III. WMATA'S MOTION TO AMEND ITS PREVIOUS LEGAL MEMORANDUM
In its May 1993 opposition to Jones' motion for partial summary judgment, WMATA stated that Mark Miller, a WMATA manager and chairman of the selection panel that denied Jones' promotion to TS-4 in 1988, "considered that Ms. Jones' decision to sign a protest letter with subordinates whom she supervised evidenced below average attitude." Seventeen months later, Miller disavowed any such consideration in his testimony at trial. Accordingly, WMATA seeks to withdraw the statement from its summary judgment opposition thereby preventing Jones from using the statement to impeach Miller. WMATA argues that evidence does not come in through the unsubstantiated statements of counsel, but through testimony; i.e., an inadvertent mischaracterization by an attorney does not establish factual conflict. Jones responds that an inconsistency between the statement of counsel and Miller's testimony is no reason to strike the former; indeed, that is why Jones used the statement to impeach Miller.
Although both parties concur that admissions made in a pleading are binding, they dispute whether similar binding effect should be accorded to admissions made in legal memoranda. See, e.g., 1OA CHARLES A. WRIGHT, ARTHUR R. MILLER MARY KAY KANE, FEDERAL PRACTICE AND PROCEDURE § 2723, at 65-66 (1983). The court need not resolve this dispute. The question is not whether the admission should have binding effect but whether it is properly in the case at all. The court holds that a statement in a legal memorandum submitted in opposition to a motion for summary judgment may be weighed by the finder of facts along with any subsequent modification or revocation of that statement. Moreover, WMATA's post-trial motion to change what they filed in May 1993 is untimely; the motion was filed two months after the jury rendered its verdict and 19 months after the original submission of the memorandum.
IV. WMATA'S MOTION FOR A NEW TRIAL
In support of its motion for a new trial, WMATA alleges, first, that the jury should have been instructed that WMATA was entitled to a final opportunity to prove by clear and convincing evidence that an adverse employment action would have occurred even absent retaliatory motive. Second, WMATA protests four other instructions — two of which were proposed by WMATA but rejected by the court, and two of which were presented to the jury over WMATA's objection: (1) the jury should have been instructed that Jones had no right to counsel at her March 1991 meeting with Al Brown, a manager in Rail Transportation; (2) the jury should have been instructed that if WMATA had a good faith belief that Jones was denied a promotion for a lawful reason, then Jones was not entitled to money damages; (3) the jury was improperly instructed that the decision of the Equal Employment Opportunity Commission (EEOC) in a case involving employee Joseph Taylor was entitled to no weight; and (4) the jury was improperly instructed that Jones was engaged in protected activity when in 1985, jointly with her subordinates, she protested discrimination in the Rail department.
Third, WMATA raises three matters concerning the admissibility of evidence: (1) testimony by various witnesses alleging prior discriminatory acts by WMATA should not have been admitted; (2) this court's initial holding in Jones v. WMATA, Civil Action No. 89-0552, 1993 WL 835589 (D.D.C. Aug. 6, 1993), that WMATA retaliated by failing to reinstate Jones, should not have been admitted; and (3) the court's finding of sex discrimination in Townsend v. WMATA, 746 F. Supp. 178 (D.D.C. 1990), is not relevant to the present charge of retaliation and therefore inadmissible — both on that ground and because it is hearsay. Finally, WMATA asserts that my partiality and bias in the presence of the jury is a sufficient basis for a new trial.
A. Jury Instruction Regarding But-For Causation
WMATA contends that the jury should have been instructed that WMATA could avoid liability if it demonstrated by clear and convincing evidence that retaliation was not the but-for cause of the adverse personnel action against Jones; i.e., that Jones would have been fired even absent retaliation. See Berger, 843 F.2d at 1423, 1426; Chen v. GAO, 821 F.2d 732, 739 (D.C. Cir. 1987). Jones characterizes this requested instruction as a mixed-motive instruction. She claims that an assertion by WMATA that its adverse action would have occurred without retaliation is an affirmative defense, see Price Waterhouse v. Hopkins, 490 U.S. 228, 246, 109 S.Ct. 1775, 1788, 104 L.Ed.2d 268 (1989), which must be pleaded, see Fed, R.Civ.P. 8(c), or it is waived. According to Jones, WMATA did not argue joint motive but denied outright that retaliation occurred; in Jones' view, the issue is whether WMATA's alleged legitimate reason for its action is pretextual. WMATA points out, however, that our circuit in Berger allowed defendants final recourse in a retaliation case to dispute but-for causation without requiring that the defense be raised affirmatively in the pleadings.
Like the case at bar, Berger was pleaded as a pretext case. The court stated, however, that "[t]he evidence presented by the parties . . . suggest[s] that the reasons for the defendant's conduct are mixed, consisting of both retaliatory and legitimate factors. For that reason, this circuit has adopted a "but for test of causation." 843 F.2d at 1423. It seems that the evidentiary showing in Berger prompted the court to depart from a pretext model and adopt a mixed motive model — a precursor of the mixed motive paradigm later clarified in Price Waterhouse.
The circumstances here are quite different. In its post-hearing brief (at 3 n. 2) WMATA expressly confirms that this case was tried — not just pleaded — as a pretext case in which either legal or illegal motives, but not both, underlay the adverse employment actions. The evidence here was presented in one bundle for the trier to decide whether retaliation or a legitimate reason motivated the employer. WMATA denied a retaliatory motive altogether; it never produced evidence showing an alternative, lawful basis for its conduct co-existent with a retaliatory motive. There is, accordingly, no reason for a mixed motive instruction.
In a case tried under the rubric of pretext, the defendant does not get a second bite at the apple to show that it would have taken the same action anyway. Even if the mixed motive paradigm adopted by the court in Berger were still good law after Price Waterhouse (as later modified by the Civil Rights Act of 1991, 42 U.S.C. § 2000e-2 (m)), WMATA would at a minimum have been required to introduce evidence of a dual motive at trial. Instead, it argued that a nonpretextual legitimate reason was its sole motivating factor.
B. WMATA'S Further Objections to Jury Instructions
WMATA also sought a jury instruction, which the court rejected, that Jones had no right to counsel at her meeting with Al Brown. Jones insists that she did not claim a right to counsel, so a jury instruction on that subject was unnecessary. WMATA replies that whether Jones had a right to counsel is relevant in assessing the reasonableness of her conduct in refusing to meet with Brown. According to WMATA, Jones' unreasonable refusal to meet with her superior was an important factor that resulted in her termination in 1991.
A jury instruction is of course inappropriate unless the underlying issue is firmly established in law. In this instance, it is not at all clear that Jones had no right to counsel. She agreed to meet with her immediate supervisor, Albert Yorro, without counsel present, but declined to meet with Brown, a higher-level official with whom she had already experienced difficulties, unless her attorney was in attendance. The meeting with Brown was to be investigatory in nature — in connection with the so-called red ribbon incident. When a public employee is under investigation, with potential loss of liberty or property, due process may require that the employee be represented by counsel. See Hannah v. Larche, 363 U.S. 420, 442, 80 S.Ct. 1502, 1514-15, 4 L.Ed.2d 1307 (1960) ("when governmental agencies adjudicate or make binding determinations which directly affect the legal rights of individuals, it is imperative that those agencies use the procedures which have traditionally been associated with the judicial process").
WMATA cites Hannah for the proposition that government employees typically are not entitled to be represented by counsel in an investigatory proceeding. But Hannah involved the Civil Rights Commission, a purely investigative agency. The Court was careful to note that when the "governmental action does not partake of an adjudication, as for example, when a general fact-finding investigation is being conducted, it is not necessary that the full panoply of judicial procedures be used." Id. Here, by contrast, the investigation was followed directly by Jones' termination — clearly an adjudicatory function.
Although the Court in Hannah held that the Civil Rights Commission "does not adjudicate, [and therefore] it need not be bound by adjudicatory procedures," id., the Court went on to suggest that due process would be a greater concern if "the Commission's proceedings might irreparably harm those being investigated by subjecting them to . . . the distinct likelihood of losing their jobs," id. at 443, 80 S.Ct. at 1515.
The court concludes that there is sufficient uncertainty surrounding the circumstances of Jones' meeting with Brown to foreclose a jury instruction that Jones had no right to counsel as a matter of law.
Next, WMATA argues for an instruction to the jury that if WMATA had a good faith belief that Jones was denied a promotion for a lawful reason, then Jones was not entitled to money damages. See Hazen Paper, 507 U.S. at 616, 113 S.Ct. at 1709. Jones insists that the "willfulness" instruction was faithful to Hazen Paper, and this court agrees. The Court held in Hazen Paper that "[i]f an employer incorrectly but in good faith and nonrecklessly believes that the statute permits a particular age-based decision, then liquidated damages should not be imposed." Id. (emphasis added). In the ADEA context, liquidated damages ( i.e., back pay) do not equate to — indeed they were in addition to — the underlying monetary damages assessed against the defendant. Id. at 608, 113 S.Ct. at 1705. Consequently, Hazen Paper does not speak to the propriety of money damages.
WMATA also protests the court's instruction to the jury that the EEOC decision in a case involving employee Joseph Taylor was "entitled to no weight" (WMATA's characterization of the instruction). The EEOC found that Taylor had not established by a preponderance of the evidence that retaliation played a role in WMATA's decision to downgrade Taylor's employment status. Jones responds that a cautionary instruction regarding the EEOC determination was appropriate. In fact, the instruction read to the jury did not use the phrase "no weight." It simply said that the EEOC "findings have no legal significance." The court elaborated: "Regardless of the findings of the EEOC about a particular person's case, that person has the right to go to court and have the case decided by a judge and jury." This is a correct statement of the law; the court rejects WMATA's protest.
Finally, WMATA contends that the court should not have instructed the jury that Jones engaged in protected activity when in 1985, jointly with her subordinates, she sent at letter to management protesting discrimination in the Rail department. An employer's interest in the smooth functioning of its business must be balanced against the employees' interest in resolving discrimination disputes. Toward this objective, the District of Columbia Circuit has held that an EEO protest is protected activity unless it is "expressed disruptively, insubordinately, or in a manner damaging to [the employer's] legitimate management interests." Parker v. Baltimore Ohio R.R. Co., 652 F.2d 1012, 1019-20 (D.C. Cir. 1981). WMATA does not argue that Jones' 1985 protest was disruptive or insubordinate. Indeed, WMATA manager Mark Miller acknowledged at trial that the letter in question was polite. Moreover, WMATA has not shown that Jones' protest was damaging to WMATA's management interests. Absent such a showing, there is no basis upon which to conclude that Jones' actions were not protected. The court finds that the jury instruction was proper.
C. Admissibility of Evidence
WMATA maintains, first, that testimony by various witnesses — including Avon Mackel, Herbert Anzueto, Joan Lewis, and Joseph Taylor — alleging prior discriminatory acts by WMATA should not have been admitted. Jones responds that such testimony is relevant to prove that Fady Bassily and other WMATA officials regularly retaliate against employees who protest discrimination. The court holds that, at a minimum, evidence of prior discriminatory acts are relevant to WMATA's motive and intent, see Fed.R.Ev id. 404(b), and on the facts of this case the danger of unfair prejudice from such evidence does not outweigh its probative value, see Fed.R.Ev id. 403. See also Morris v. WMATA, 702 F.2d 1037, 1045 (D.C. Cir. 1983) ("The question of the legitimacy of the employer's motivation . . . is one upon which the past acts of the employer have some bearing").
Second, WMATA argues that this court's initial holding in Jones v. WMATA, Civil Action No. 89-0552, 1998 WL 835589 (D.D.C. Aug. 6, 1993) — that WMATA retaliated by failing to reinstate Jones — should not have been admitted, or should have been admitted only in a bifurcated damages hearing after liability had been determined, or at least the jury should have been instructed that the prior summary judgment was subject to appeal. These arguments are without merit. Facts found when summary judgment is partially granted are to be specified, and "[u]pon the trial of the action the facts so specified shall be deemed established, and the trial shall be conducted accordingly." Fed.R.Civ.P. 56 (d).
Third, WMATA asserts that the court's finding of sex discrimination in Townsend v. WMATA, 746 F. Supp. 178 (D.D.C. 1990), is both hearsay and irrelevant to the present charge of retaliation. As to relevance, the fact that WMATA may have been engaged in widespread discrimination based upon sex, age, race or any other impermissible factor would certainly be relevant to its intent or motive to retaliate against those who complained of such discrimination.
On the hearsay question, Judge Harris of this court did indeed strike the factual findings of the Townsend case as hearsay in his recent opinion in Taylor v. WMATA, 922 F. Supp. 665, 675-76 (D.D.C. 1996). Jones counters, however, that the circumstances here are different; the Townsend case arose in connection with cross examination — only after WMATA had opened the door during its direct examination. The court is not persuaded by this explanation. WMATA's direct examination raised the question whether Bassily was familiar with the entry into this litigation of Kator, Scott Heller, a law firm that had opposed WMATA in Townsend and that was hired to represent Jones in February 1991 after her then-current attorney had become ill. Testimony on WMATA's awareness that new attorneys were involved might "open the door" to establish that the same attorneys opposed WMATA in Townsend; but it surely does not open the door to introduce the facts of the Townsend litigation.
On the other hand, even if the Townsend decision is hearsay, it is still admissible as an exception to the hearsay rule under Fed.R.Ev id. 803 (24). The requirements for admissibility are that the evidence: (a) has circumstantial guarantees of trustworthiness, (b) is offered on a material fact, and (c) is more probative on the point for which it is offered than other reasonably available evidence. id. The court concludes that these requirements are met in this instance, and that the interests of justice were best served by admission of Townsend into evidence. Rule 803 (24) also requires pre-trial notice WMATA had ample notice; the question of the admissibility of Townsend was the subject of extensive pre-trial briefing.
D. Partiality and Bias of the District Judge
As a final ground upon which to demand a new trial, WMATA questions my impartiality and accuses me of bias in the presence of the jury. In particular, WMATA argues that the court exceeded permissible limits in its ardent questioning of WMATA witnesses, and that the court communicated to the jury its belief regarding WMATA's guilt. In United States v. McCord, 509 F.2d 334 (D.C. Cir. 1974) (en banc), cert. denied, 421 U.S. 930, 95 S.Ct. 1656, 44 L.Ed.2d 87 (1975), our circuit reviewed Judge Sirica's aggressive questioning of Watergate witnesses. The court held that the defendant was not deprived of a fair trial, and observed that "[t]he judge . . . is not a passive bystander in the arena of justice, a spectator at a "sporting event"; rather he or she has the most pressing affirmative responsibility to see that justice is done in every case." 509 F.2d at 347 (footnotes omitted).
In the present case, the court's questioning was sparing, focused, fair, and an appropriate exercise of its "affirmative responsibility to see that justice is done in every case." McCord shelters judicial intervention — even in a criminal case — more active than anything that occurred in this civil proceeding. See also Kennedy v. Los Angeles Police Dep't, 901 F.2d 702, 709 (9th Cir. 1989) (reversal not warranted even though court's questions were "quite pointed and intemperate"; court did not impede counsel's questioning of witnesses, nor preempt counsel's function, nor assume role of witness or advocate, nor misstate factual accounts, nor introduce evidence; "[v]ery few cases outside of the criminal law area support an appellate finding of general judicial misconduct during trial").
Furthermore, the court instructed the jurors that they "should not take my questions to witnesses as any indication of the Court's opinion. . . . Remember at all times that you, as jurors, are at liberty to disregard all comments of the Court in arriving at your own findings as to the facts." STANDARDISED JURY INSTRUCTIONS FOR THE DISTRICT OF COLUMBIA, No. 1-7. The court elaborated upon this point, reiterating that
[t]he law of the United States permits the Judge to comment to the jury on the evidence in the case. Such expressions, when made, are only expressions of the Judge's opinion as to the facts, and you are not bound by that opinion. If, during the course of this trial or this charge, I have made or make any comment on any evidence, or any comment which you interpret as an expression or intimation of opinion as to any fact, you are free to disregard it. You are the sole and exclusive judges of all issues of fact in this case.
You are not to permit yourself to be influenced by anything the Court has said or done which you might think suggested to you that he is inclined to favor the claims or positions of either party. I have not intended to express or to intimate any opinion as to what witnesses are worthy of belief or disbelief; what facts are established; which facts have not been established; or what inferences should be drawn from the evidence. If any expression of mine has seemed to indicate an opinion relating to any of these matters, I instruct you to disregard that seeming indication.Id., No. 1-6, 1-8.
Absent contrary indication, it is not unreasonable to conclude that the jury followed these instructions. See, e.g., United States v. Perholtz, 842 F.2d 343, 861 (D.C. Cir.), cert. denied, 488 U.S. 821, 109 S.Ct. 65, 102 L.Ed.2d 42 (1988).
V. WMATA'S MOTION FOR JUDGMENT
WMATA asks the court to overturn two of the jury's findings: (1) that. WMATA retaliated against Jones by denying her promotion to TS-4 in 1988, and (2) that WMATA retaliated against Jones by terminating her in 1991. At the outset, the court takes note of the rigorous standard for overturning a jury verdict: "[I]f (1) the elements of a prima fade case are present, and (2) there exists sufficient evidence for a reasonable jury to reject the defendant's proffered reasons for its actions, then the evidence is sufficient to allow the jury to determine whether intentional discrimination has occurred, and we are without power to reverse the jury's finding." Gaworski v. ITT Commercial Fin. Corp., 17 F.3d 1104, 1109 (8th Cir.), cert. denied, ___ U.S. ___, 115 S.Ct. 355, 130 L.Ed.2d 310 (1994).
Rule 50 of the Federal Rules of Civil Procedure provides that "the court may grant a motion for judgment as a matter of law" if "there is no legally sufficient evidentiary basis for a reasonable jury to have found" for the non-moving party. Judgment as a matter of law should only be granted "if, viewing the evidence in the light most favorable to the plaintiff and giving [her] the advantage of every fair and reasonable inference that the evidence may permit, there can be but one reasonable conclusion drawn." Richardson v. Richardson-Merrill Inc., 857 F.2d 823, 827 (D.C. Cir. 1988), cert. denied, 493 U.S. 882, 110 S.Ct. 218, 107 L.Ed.2d 171 (1989).
A. Retaliatory Denial of Promotion to TS-4 in 1988
In St. Mary's Honor Center v. Hicks, 509 U.S. 502, 113 S.Ct. 2742, 125 L.Ed.2d 407 (1993), the Supreme Court held that a prima facie case, together with the discrediting of the defendant's putative nondiscriminatory explanation for its conduct, is sufficient to sustain a finding of discrimination:
The factfinder's disbelief of the reasons put forward by the defendant (particularly if disbelief is accompanied by a suspicion of mendacity) may, together with the prima facie case, suffice to show intentional discrimination. Thus, rejection of the defendant's proffered reasons will permit the trier of fact to infer the ultimate fact of intentional discrimination, and . . . no additional proof of discrimination is required.Id. at 511, 113 S.Ct. at 2748 (internal quotation omitted) (emphasis in original).
The burden of establishing a prima facie case of discrimination is "not onerous," Texas Dep't of Community Affairs v. Burdine, 450 U.S. 248, 253, 101 S.Ct. 1089, 1094, 67 L.Ed.2d 207 (1981), and the same is true of a prima facie case of reprisal:
In order to establish a prima facie case of retaliation a plaintiff must show: (1) that she engaged in a statutorily protected activity; (2) that the employer took an adverse personnel action; and (3) that a causal connection existed between the two. As in a case of disparate treatment, this initial burden is not great.McKenna v. Weinberger, 729 F.2d 783, 790 (D.C. Cir. 1984) (footnote omitted). The causal connection may be established by showing that the employer had knowledge of the protected activity and that there was a temporal link between that activity and the adverse personnel action. Mitchell v. Baidrige, 759 F.2d 80, 86 (D.C. Cir. 1985).
WMATA concedes that in 1988 Mark Miller knew of Jones' protected activity under the ADEA — indeed, he was required to respond to inquiries about her 1987 EEOC charge in the autumn of 1988. WMATA's contention, however, is that while Mark Miller may have been aware of Jones' 1987 charge, Jones did not establish a nexus between that knowledge and the denial of promotion. Nor, according to WMATA, has Jones rebutted WMATA's legitimate business reason for not promoting Jones — that she failed her interview and was otherwise evaluated only as "satisfactory." WMATA points out that Jones was rated "above expected" on only 6 of 68 criteria; that none of Jones' peers thought she should be promoted; and that Jones offers no evidence why the denial of her promotion by panel members Kochersberg, Lee, Collins, and Francis should be deemed retaliatory, or even that they knew of Jones' prior complaint.
It was Miller, however, who chaired the panel that considered applicants for TS-4 in the autumn of 1988. The jury could have concluded that as chairman he played an instrumental — perhaps dominant — role in rejecting Jones. Further, the jury could have determined that Bassily personally approved all promotions to supervisory positions in the Rail department, and that Bassily and Miller worked hand-in-glove to retaliate against Jones.
The jury could also have considered that Miller's rationale for rejecting Jones was pretextual. Among other things, he partly attributed the low marks he gave Jones for attitude and leadership to her response to a particular interview question; but he admitted that several of the selected candidates gave the same answer. Moreover, Jones ranked higher than several candidates chosen on the "absolute scores" assigned to the applicants.
There was more than enough evidence for the jury to reject WMATA's explanation of events and to conclude that retaliation was the real reason. In such circumstances, a court is "without power to reverse the jury's finding." Gaworski, 17 F.3d at 1109.
B. Retaliatory Termination in 1991
WMATA argues that Jones did not establish a prima facie case with respect to the 1991 termination, which occurred 3 1/2 years after Jones filed an EEOC charge in September 1987. Jones counters that the protected activity that triggered the 1991 termination was not the 1987 EEOC charge but Jones' hiring of new counsel in February 1991 to prosecute the present litigation. WMATA replies, there is no evidence that anyone in the Rail department knew at the time of Jones' termination that new counsel had entered this case.
Further, WMATA insists that Jones was terminated for flagrant insubordination — refusing to meet with management unless her attorney was present — and that Jones has not shown that this rationale was pretextual. WMATA notes that its employment manual permits termination for the first offense of insubordination.
First, on the matter of WMATA's awareness of Jones' protected activity in hiring new counsel: It is undisputed that key officials including Bassily knew that this lawsuit had been filed in 1989 and was still pending. The jury could have disbelieved Bassily and concluded that he knew that Jones had recently retained new counsel. Consider: (A) WMATA's office of General Counsel knew of the appearance of new counsel on behalf of Jones; it is likely that the office was also dealing with Bassily at the time. (B) Al Brown questioned employee Jackie Rhodes about Jones' lawyers during his lengthy interrogation of her (see below), only a week before Jones was fired.
Given these facts, the jury could reasonably have determined that pertinent WMATA officials were aware in March 1991 both that this suit was pending and that Jones had in February 1991 retained new counsel to prosecute it. Hence the jury could have found the elements needed to establish a prima facie case of retaliation.
The jury could also have concluded that WMATA's explanation for Jones' termination — alleged insubordination — was pretextual. Jones was aware that Al Brown had interrogated Jackie Rhodes for 10 hours over two days regarding the red ribbon incident; he threatened Rhodes with firing, pressed her for "dirt" on Jones, and said he wanted to know about Jones' lawyers. The jury heard testimony that when Jones refused to meet with Brown, Miller yelled at her, followed her down the corridor, bumped her; then Denise McKenzie grabbed Jones' wrist to get her to accept a memorandum directing her to meet with management. Later, responding to instructions from her immediate supervisor, Albert Yorro, Jones reported to the medical office where she was recorded as having high blood pressure five hours after the incident.
In light of these events, the jury might have concluded that Jones had ample reason to be concerned about a meeting with Brown. The jury may also have considered that Jones justifiably required that an attorney be present. Indeed, Personnel Director Warren Eisenhower conceded that an employee familiar with Al Brown's abusive interrogation techniques could reasonably have insisted on representation during any meeting with him. Even if the jury was unsure of Jones' right to be represented at the meeting by counsel, it may nonetheless have believed that management used the occasion as an excuse to fire her in retaliation for pressing forward with this lawsuit.
The jury may also have taken note of, and credited, several other factors: (1) Jones' willingness at all times to meet her immediate supervisor, Yorro; (2) WMATA's violation of its own policies in firing Jones without affording her an opportunity to tell her side of the story; (3) third party evidence showing that Bassily and his subordinates retaliated against employees who filed EEO complaints; and (4) evidence that Jones herself had earlier been subjected to retaliation.
In short, there is no basis upon which to conclude that the jury should be reversed in its findings of retaliation. WMATA's Rule 50 motion is denied.
SO ORDERED.
MEMORANDUM OPINION II
LAMBERTH, District Judge.The court today issues this Memorandum Opinion II and accompanying order covering non-jury issues tried before the court. Separately issued this date is Order and Memorandum Opinion I, which sets the background of this litigation and addresses several motions by defendant Washington Metropolitan Area Transit Authority (WMATA), including its motion for judgment as a matter of law or, in the alternative, for a new trial.
Because the unlawful acts alleged in this case predate the Civil Rights Act of 1991, the court rather than the jury must decide Jones' Title VII claims. Landgraf v. USI Film Prods., 511 U.S. 244, 114 S.Ct. 1483, 128 L.Ed.2d 229 (1994). The court must also decide issues of relief under both Title VII and the Age Discrimination in Employment Act (ADEA), including attorneys' fees, the amount of back pay owed Jones, and the amount of liquidated damages due her under the ADEA given the jury's determination that the ADEA violations were willful, 29 U.S.C. § 626 (b). Finally, the court must decide the nature of any injunctive relief, such as promotion and reinstatement, as well as Jones' request that WMATA and its assistant general manager in charge of rail, Fady Bassily, be enjoined from further retaliation against her or other WMATA employees who engage in protected activity.
Plaintiff Judy Jones asks that the court find that WMATA retaliated against her in violation of Title VII when she was denied promotion to TS-4 in 1987 and 1988, and when she was terminated in March 1991, and that WMATA subjected her to sex discrimination in violation of Title VII when she was rejected for promotion to TS-5 in 1987. Based upon the following findings of fact and conclusions of law, the court holds that WMATA violated Title VII by denying Jones' promotion to TS-4 in 1987 and again in 1988, and by terminating Jones in 1991. The court rejects Jones' claims in respect of the TS-5 promotion in 1987.
I. FINDINGS OF FACT AND CONCLUSIONS OF LAW
A. Controlling Law
1. WMATA is an employer as defined by both the ADEA, 29 U.S.C. § 621 et seq., and Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. § 2000e et seq.
2. Title VII makes it unlawful for an employer to discriminate against one of its employees on the basis of sex or to retaliate against one of its employees for complaining about sex discrimination or for pursuing a claim of sex discrimination. Under Title VII, such complaints are considered protected activity. 42 U.S.C. § 2000e-3 (a).
3. The burden of establishing a prima facie case of sex discrimination in violation of Title VII can be satisfied by showing that (1) the plaintiff applied for the job, (2) she was qualified for it, (3) she was not selected, and (4) a man was. See McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802, 93 S.Ct. 1817, 1824, 36 L.Ed.2d 668 (1973); Texas Department of Community Affairs v. Burdine, 450 U.S. 248, 252-53, 101 S.Ct. 1089, 1093-94, 67 L.Ed.2d 207 (1981).
4. The burden of establishing a prima fade case of retaliation in violation of Title VII can be satisfied by showing that (1) the plaintiff engaged in activity protected by the Act, (2) the plaintiff was subject to an adverse employment action, and (3) there exists a causal connection between the two. McKenna v. Winberger, 729 F.2d 783, 790 (D.C. Cir. 1984). The third element may be satisfied by showing that the employer was aware of the protected expressions at the time of the adverse employment action, and that the adverse action took place shortly after the protected activity, Mitchell v. Baldrige, 759 F.2d 80, 86 (D.C. Cir. 1985).
5. If the plaintiff establishes a prima facie case, the burden shifts to the defendant to articulate a legitimate, non-discriminatory explanation for its actions. Burdine, 450 U.S. at 253, 101 S.Ct. at 1093-94.
6. The burden "then passes back to the plaintiff to prove, by a preponderance of the evidence, that sex discrimination or unlawful retaliation more likely than not motivated the employer's actions. Id. Plaintiff need not present direct evidence. If she demonstrates that the employer's articulated explanations are unworthy of credence, the finder of fact may, but is not required to, infer that the reason is pretextual and that sex discrimination or retaliation is the real reason. St. Mary's Honor Center v. Hicks, 509 U.S. 502, 511, 113 S.Ct. 2742, 2749, 125 L.Ed.2d 407 (1993).
7. Where there is direct evidence of sex discrimination or retaliation, the McDonnell Douglas/Burdine circumstantial proof scheme, including the prima facie analysis set forth above, need not be applied, and the issue narrows to whether plaintiff has proven by a preponderance of the evidence that retaliation more likely than not motivated the adverse action. Trans World Airlines, Inc. v. Thurston, 469 U.S. 111, 121, 105 S.Ct. 613, 621, 83 L.Ed.2d 523 (1985).
B. Background
8. Jones had served as a first line supervisor (TS-3) in the Rail Department since 1984, having begun her career at WMATA as a bus driver in 1974 and having later served as a Train Operator. At the time of trial, she was 69. Jones has openly protested what she perceived as discrimination in the Rail department, using both formal and informal means to present her views.
9. Jones engaged in protected activity under Title VII by protesting sex and race discrimination on five separate occasions: (1) when she and four other women sent a letter to Fady Bassily in 1985 protesting discrimination, (2) when she filed an earlier Title VII lawsuit against WMATA that settled in February 1987, (3) when she filed a charge with the Equal Employment Opportunity Commission (EEOC) that is the basis for this suit in September 1987, (4) when she filed this lawsuit in March 1989, and (5) when she retained new counsel to prosecute this suit in February 1991.
10. In assessing Jones' claims, the court relies in part upon "third party" evidence of retaliation at WMATA. In this regard, the court credits the testimony of Avon Mackel, Joan Lewis, and Glennard Hodges.
11. Avon Mackel is a senior manager who has worked at WMATA for 10 years. In 1990, following a reorganization, Mackel served in the Rail Department and filed a charge of discrimination with the EEOC.
12. Bassily's response was to inform Mackel that he did not like his managers filing discrimination complaints. Bassily said that a reduction-in-force was on the horizon, and he made it clear that if Mackel pressed his EEO complaint he would be RIFfed. Mackel refused to drop his complaint, and two months later he was RIFfed.
13. Joan Lewis, a former EEO officer at WMATA, confirmed that Bassily resented discrimination complaints, often reacting angrily when one was filed. She also testified that Claude Swanson, WMATA's Director of Civil Rights, ordered her to report all complaints of discrimination — informal as well as formal — to Carmen Thorne, one of Bassily's assistants. No department other than Rail had ever sought such information and its disclosure could compromise the anonymity of some informal complaints. Lewis declined to honor Swanson's directive but later learned that someone else in Civil Rights was providing the information to the Rail department.
14. Glennard Hodges was an Assistant Superintendent, TS-7, when he helped form an association of rail supervisors in 1992. He was later demoted to TS-3. Hodges testified that, in his view, Bassily retaliated against Judy Jones when he fired her in 1991.
15. Taken as a whole, the testimony of Mackel, Lewis, and Hodges suggests that Fady Bassily engaged in retaliation against those who complained of discrimination in the Rail department. It is against this backdrop of retaliation that Judy Jones' claims must be assessed.
C. Jones' Qualifications
16. According to WMATA official Mark Miller, Judy Jones was one of the better applicants for the first level position of Rail Supervisor, TS-3, when she secured that job in 1984. She has never been promoted above that level.
17. When applying for promotion, Jones received high marks on criteria such as job knowledge, communications skills, education and training; but she was denied promotions, allegedly because of poor ratings on other criteria — most particularly, attitude. Nonetheless, referring to the 1986-87 time frame, Jones' supervisor said that she "[a]ccepts assignments with a positive attitude" and generally "suggests innovative solutions to work problems."
18. For 1987-88, another supervisor said that Jones "[r]outinely follows authority policies, rules, regulations" and that she "looks for constructive solutions" to work problems. For 1988-89, a third supervisor reported that "Jones willingly helps co-workers and routinely follows Authority's Policies, Rules and Regulations." And for 1989-90 — the evaluation period that ended just a few months before her termination-Jones' supervisor said that "Jones has a good attitude and willingly shares knowledge and information to help others on her shift. She cooperates with the other departments with which she interfaces during her working hours."
19. Upon occasion, supervisors prepare special ratings to assist in making promotional decisions. In 1988 — when Jones was denied a TS-4 position — she received a higher special supervisory rating than several of the candidates who were chosen. And in 1989, Jones' supervisor stated:
Jones has no problems with her leadership abilities. She knows what has to be accomplished during her tour of duty and uses every means at her disposal to do so.
Supervisor Jones does show sound judgment. . . . [S]he has . . . never had a problem which she could not handle herself. She is self sufficient.
Her knowledge of rules and regulations is very thorough and she can produce quality work without supervision.
20. Jackie Rhodes, a subordinate of Jones' employed by WMATA as a train operator, testified credibly that Jones is one of the finest supervisors she has had; Jones is precise in her directives to her staff, treats subordinates well, and never orders someone to do something that she will not do herself.
D. Denial of Promotion to TS-4 in 1987
21. In 1985, about a year after she became a TS-3 supervisor, Jones and four other women (all Train Operators serving under her) sent a short letter to Fady Bassily protesting what they believed was discrimination against white women in the Rail department. Mark Miller, who was head of Rail Transportation at the time, acknowledged at trial that the letter was polite. Bassily directed Miller to take care of the situation.
22. At that point Miller and John Kirin (then the third ranking person in Rail but soon to shift positions with Miller) subjected Jones to an aggressive interview during which he ordered her never to send another such letter to Bassily and told her that if she did not like the situation at WMATA she should resign as a supervisor.
23. In 1986 Rail management sought to upgrade all first line supervisors one pay level — to TS-4 — but was able to secure authorization only to upgrade some 40 percent of the 80-90 TS-3's, or about 32-36. The first batch of TS — 4 upgrades occurred in 1986; the second batch was slated for 1987.
24. Joseph Taylor was appointed to head a screening panel which in 1987 recommended 14 candidates to be considered for promotion to TS-4, including Judy Jones. Bassily said that he fostered the use of screening panels to address abuses in the promotion process. Nonetheless, Kirin (then the second ranking person in Rail, having traded places with Miller) rejected the work of the Taylor panel. Kirin was allegedly concerned that the panel had recommended applicants who had not been cross-trained in all aspects of rail operations. In any event, he directed Miller to come up with a new list.
25. Miller relied in part upon the ratings of the Taylor panel, although he made his final decision based upon a matrix designed by Kirin. Jones was among those considered by Miller, but she was not selected — notwithstanding that she was one of the candidates who was cross-trained. Kirin had instructed Miller to take into account any disciplinary incidents that had occurred within the past three years; Miller purportedly rejected Jones based upon the so-called trailed switch incident, which occurred roughly 1 1/2 years before Miller made his selections.
26. Before he made his final selections, Miller had met with Jones. In a followup letter, he set forth three problem areas for Jones to address in order to improve her prospects for promotion. The trailed switch incident was not among the three.
27. Beginning with the third reason, Miller said that Jones' test score was "marginal" But her score of 75 was better than James Dowtin's 70, and Dowtin was promoted.
28. Miller's second reason was Jones' conduct in the celebrated "farecard incident." Near midnight one summer evening in 1987 at the Dupont Circle Metrorail station, a female customer attempted to use a $10 bill to purchase a $1.10 farecard to Shady Grove. She needed all the change — over $8.00 — to take a cab from Shady Grove to her final destination. Apparently because of a confusing sign (later fixed), the customer did not realize that the farecard machine would only give her about $4.50 in change, so she wound up with a higher valued farecard and less change than she needed.
29. She complained to the station attendant and declined to leave the station. The attendant called the Operations Control Center and OCC contacted Jones, who proceeded to Dupont Circle. Jones talked to the woman, ascertained the problem, collected the appropriate amount of change from the floor of the farecard machine, then gave the woman the change and a trip pass to Shady Grove. In short, Jones used initiative to solve a serious problem for a customer.
30. In so doing, she acted in conformance with the Metrorail Handbook, which provides that "[e]mployees shall attend to reasonable requests from patrons quickly and accurately, avoiding unnecessary referral to other departments." The Handbook also requires employees to "exercise judgment in deciding the safest and wisest course to follow" in situations not specifically covered by the rules. Jones was also acting in furtherance of a recent directive to minimize customer complaints at busy stations such as Dupont Circle.
31. Under these circumstances, Miller's explanation that Jones' conduct violated strict procedures governing access to fare card machines — and hence was a basis for rejecting her promotion to TS-4 — was pretextual.
32. The first reason given by Miller is more plausible — but violative of Title VII. In his letter, Miller told Jones that "to transmit your personal views to your subordinates (when in conflict with those of the Authority), was unprofessional and would by necessity be taken into consideration during any review for promotional possibilities." In the court's view, Miller was referring to the letter that Jones and four subordinates sent to Bassily in 1985 protesting discrimination. Miller attempted to deny this; he said he was referring to Jones having told her subordinates that cross-training was a stupid idea. The court does not find that explanation to be credible.
33. Moreover, WMATA counsel, commenting on the 1987 TS-4 selection, represented to the court that Miller "considered that Ms. Jones' decision to sign a protest letter with subordinates whom she supervised evidenced a below average attitude." [See Order and Memorandum Opinion I, denying WMATA's motion to amend its previous legal memorandum opposing Jones' motion for partial summary judgment.]
34. Indeed, in a matrix that Miller put together on the various candidates, he recorded that Jones "need[ed] to adjust [her] attitude to support WMATA policy" — a view entirely consistent with his resentment over her 1985 discrimination complaint. In sum, the court concludes that the reason Miller rejected Jones for TS-4 in 1987 was her protest of sexual discrimination more than two years earlier.
35. At trial, Miller also testified that Jones was rejected for TS-4 because she had refused to train a subordinate. This reason — like the trailed switch incident — was not among those listed in Miller's October 1987 letter to Jones. Jones had declined for safety reasons to give an individual on-the-job training. Miller reviewed the situation and agreed that the individual could not be properly trained in the one-to-two days Jones would have, so he did not direct her to perform the training. There was nothing in this incident that could have served as a legitimate reason to reject Jones for promotion.
36. The court is making its findings under Title VII independent of the jury's determinations under the ADEA. The jury did not find WMATA liable for retaliation under the ADEA for the refusal to promote Jones in 1987. But to find retaliation under the ADEA, the jury had to determine that Miller refused to promote Jones because she was protesting age discrimination. The issue underlying Jones' Title VII claim of retaliation is sex discrimination. On the facts of this case, the protected act under the ADEA was distinct from the protected act under Title VII.
37. Jones did not first assert age — as opposed to sex or race — discrimination until she filed a charge with the Equal Employment Opportunity Commission on September 11, 1987. Miller made his decision on October 1, 1987, and WMATA has argued that Miller was not aware of the EEOC charge at that time, observing that the Authority did not receive formal notice of the charge from EEOC until sometime in the first week of October. If so, then Miller's rejection of Jones could not have been retaliation under the ADEA.
38. Miller was aware, however, that Jones had protested sex and race discrimination in 1985; and that is the basis upon which Jones claims retaliation under Title VII. WMATA counters that Jones' 1985 letter to Bassily was not protected activity because it was submitted jointly with subordinate employees. The court rejects that argument, see Order and Memorandum Opinion I, and concludes that Bassily refused to promote Jones to TS-4 in 1987 in retaliation for the 1985 protest.
E. Denial of Promotion to TS-4 in 1988
39. This litigation encompasses legal claims under the ADEA tried to a jury and equitable claims under both the ADEA and Title VII tried to the court. "When legal and equitable claims are joined in the same act, "the right to jury trial on the legal claim, including all issues common to both claims, remains intact.'" Lytle v. Household Mfg., Inc., 494 U.S. 545, 550, 110 S.Ct. 1331, 1335, 108 L.Ed.2d 504 (1990) (quoting Curtis v. Loether, 415 U.S. 189, 196 n. 11, 94 S.Ct. 1005, 1009 n. 11, 39 L.Ed.2d 260 (1974)). Accordingly, the court is bound by the factual determinations of the jury insofar as the underlying facts are common to both Jones' ADEA claims and her Title VII claims.
40. The jury was instructed that Jones engaged in protected activity under the ADEA when she filed a complaint with the EEOC in September 1987. That complaint raised Title VII as well as ADEA issues. According to the jury, WMATA retaliated against Jones for her EEOC allegations by not promoting her to TS-4 in 1988. When a single protected act implicates both ADEA issues and Title VII issues, and a retaliatory act cannot be shown to have violated one of the statutes but not the other, then the underlying facts are common to both claims and the court will ordinarily defer to the jury.
41. In this instance, the court is aware of no facts — and WMATA has pointed to none — whereby the court could conclude that WMATA refused to promote Jones in retaliation for the ADEA issues that she raised in her 1987 EEOC complaint, but not in retaliation for the Title VII issues raised in the same complaint. In recognition of the common protected act — i.e., the 1987 complaint — and the absence of any evidence that would tie WMATA's retaliation solely to the ADEA issues, the court shall adopt the jury's finding of retaliation, and extend that finding to Title VII.
42. If the court had disbelieved the testimony or other evidence that may have led to a jury verdict in favor of the plaintiff under the ADEA, the court could of course have entered judgment as a matter of law on the jury issues and then proceeded to try the Title VII issues without deference to the jury's findings. Indeed, WMATA has moved for judgment as a matter of law with respect to the 1988 TS-4 denial; but the court has denied that motion. See Order and Memorandum Opinion I.
43. The court, in reliance upon the verdict of the jury on Jones' ADEA claim, finds that WMATA violated Title VII by denying Jones' 1988 promotion to TS-4 in retaliation for her 1987 EEOC complaint. The court notes that it would have reached the same conclusion independent of the jury, based upon the filings and oral argument of counsel, and the testimony and other evidence in the record.
F. Termination in 1991
44. Jones filed this suit in March 1989, just after her rejection for the TS-4 job for which she had applied in September 1988. The litigation stalled, however, because Jones' original lawyer became ill. In February 1991 she retained Kator, Scott Heller, and filed an entry of appearance form for her new counsel.
45. WMATA fired Judy Jones on March 7, 1991, citing alleged insubordination.
46. The jury was instructed that Jones engaged in protected activity under the ADEA when she retained new lawyers to prosecute this lawsuit in February 1991, when she initially filed the lawsuit in March 1989, and when she filed a complaint with the EEOC in September 1987. According to the jury, WMATA retaliated against Jones for one or more of these protected activities by terminating her in March 1991. Each of the protected activities involved both ADEA and Title VII issues.
47. The court is aware of no facts — and WMATA has pointed to none — whereby the court could conclude that WMATA terminated Jones in retaliation for the ADEA issues she raised in her 1987 EEOC complaint or in this lawsuit, but not in retaliation for the Title VII issues. In recognition of the common protected act(s) and the absence of any evidence that would tie WMATA's retaliation solely to the ADEA issues, the court shall adopt the jury's finding of retaliation, and extend that finding to Title VII.
48. The court, in reliance upon the verdict of the jury on Jones' ADEA claim, finds that WMATA violated Title VII by terminating her in 1991 in retaliation for one or more of the protected acts enumerated above. The court notes that it would have reached the same conclusion independent of the jury, based upon the filings and oral argument of counsel, and the testimony and other evidence in the record.
49. This court has previously granted partial summary judgment in plaintiff's favor on her claim that WMATA refusal to reinstate her after her termination constituted retaliation in violation of Title VII and the ADEA. The findings set forth above on Jones' other retaliation claims are consistent with that determination. The court's findings that WMATA retaliated against Jones by denying her promotion to TS-4 in 1987 and 1988, and by terminating her in 1991, would be the same even in the absence of the summary judgment determination.
G. Denial of Promotion to TS-5 in 1987
50. WMATA rejected Jones for the position of TS-5 Quality Assurance Inspector in August 1987, and selected Daniel Epps instead. Unlike Jones' other claims in this case, which involve retaliation for protected acts under both the ADEA and Title VII, here the principal issue is whether WMATA's refusal to promote Jones to TS-5 was the product of discrimination based on sex in violation of Title VII.
51. Quality Assurance (QA) is a unit in the Rail department responsible for monitoring the qualifications and performance of Rail employees. For example, QA inspectors initially certify and periodically recertify Train Operators by administering written examinations and by actually riding on trains and observing the operators' performance. Before the QA unit was formally established in 1985, and for more than a year thereafter, Rail supervisors performed this examination function as a collateral duty in a role called Performance Examiner. Service as a Performance Examiner gave a supervisor a "leg up" on formal promotional opportunities.
52. In late 1985 Judy Jones applied for the collateral duty of Performance Examiner. She secured the recommendation of her supervisor and passed the qualifying examination. Another supervisor, Daniel Epps, passed the qualifying examination at the same time. Epps was selected. Jones' Title VII complaint alleging, among other things, discrimination in the selection of Performance Examiner, was settled in February 1987. In the Stipulation of Dismissal, Jones released WMATA from discrimination claims arising out of the Performance Manager selection.
53. In his capacity as a Performance Examiner, Epps worked with the QA unit. In particular, Epps worked with QA personnel in certifying and recertifying Train Operators, so that he was able to cite his actual experience in QA when he applied for the TS-5 position at issue in 1987.
54. The officials in Rail who were required to approve Epps' promotion were Bassily and Lance Cooper, the head of QA. Wayne Thompson, a supervisor in QA, headed the screening panel that made recommendations to these officials. Kirin's approval was required to transfer Epps out of Rail Transportation.
55. Thompson wrote a summary memorandum that recommended two male finalists for further consideration-Epps and Kenneth Banks. The memorandum gave an overview of the screening process, which included a written essay and an oral interview, and provided overall ratings of the candidates. The memo stated that the completed essays and individual score sheets on each applicant had been retained in the file.
56. The score sheets contained comments on each applicant's responses to interview questions. Thompson opined "that without reviewing this information it would be impossible to certify that the rating process was fair. He testified that he gave both the completed essays and the individual score sheets to WMATA's personnel department. WMATA concedes that the material is missing, but explains only that is was lost or misla id.
57. Thompson's recommendations came only one month before Jones' EEOC charge in September 1987. For that reason alone, argues Jones, WMATA should have taken adequate measures to secure the records. In the absence of an explanation from WMATA, Jones urges the court to exercise its discretion and draw an inference that the records, if produced, would have been adverse to WMATA's defense. The court holds, however, that more than negligence must be shown to support an adverse inference; an adverse inference is available only where there is a showing of "evil intent, bad faith or willfulness." Vick v. Texas Employment Comm'n, 514 F.2d 734, 737 (5th Cir. 1975). Jones offers no evidence that bad motive contributed to the loss of the essays and the individual score sheets.
58. Thompson cited Epps' breadth of experience in a number of different Rail operations. He was unsure, however, when asked whether Jones had provided comparable information during her interview. The missing score sheets would of course have revealed Jones' responses to the various interview questions. Nonetheless, the court notes that Jones' experience was available to Thompson from her personnel files; moreover, Jones would certainly have informed Thompson of any experience that she thought relevant to the TS-5 promotion.
59. Thompson conceded that Kenneth Banks, who was a finalist for the promotion, had never served as a Train Operator; while Jones, who was not a finalist, came up through the ranks as an operator. Without such experience, argues Jones, it would be difficult for a QA Inspector to assess an operator's performance. However, the court agrees with WMATA that Banks had demonstrated his proficiency in doing the job for months before the selection took place. He was therefore competent to assess an operator's performance. Banks also had extensive and valuable experience in the Operations Control "Center (OCC), which Jones lacked. Finally, Banks received 83% of the total possible score on the 12 criteria rated by the panel, while Jones received only 56%.
60. Jones contends that Bassily and Kirin were the officials ultimately responsible for the TS-5 selection in 1987, and that they were hostile to women in general and to Jones in particular. But Jones did not prove that Bassily and Kirin were relevant to the QA selection process. In order to have been selected as QA Inspector, Jones must first have been recommended by the Thompson panel; she was not. There is no testimony that Bassily or Kirin had any role in the decision of the panel to recommend Epps and Banks. Accordingly, the court has no basis upon which to find that animus by Bassily or Kirin played a role in the panel's decision not to recommend Jones, or the ultimate decision to promote Epps.
61. The court concludes that Epps' qualifications were superior to Jones'. He was already a TS-4, with extensive experience at OCC for 14 months; he had previously served as the Division Assistant Superintendent; and he had been involved in the training and development of the utility supervisory staff. Jones had little experience other than her service as a TS-3 Rail Supervisor. She had only five days of training in OCC. Jones received 56% of the total possible score on the 12 criteria rated by the panel, while Epps received 79%.
62. WMATA has met its burden to show a legitimate, non-discriminatory reason for its personnel action against Jones. The plaintiff has not shown that WMATA reason was pretextual. Therefore, WMATA refusal to select Judy Jones for the position of Quality Assurance Inspector, TS-5, in 1987, did not constitute discrimination based on sex.
II. RELIEF
In violation of Title VII, Judy Jones was denied promotions to TS-4 in 1987 and 1988; she was unlawfully fired on March 7, 1991; and she was not thereafter employed by WMATA until her reinstatement on May 10, 1994 by order of this court. The jury has already awarded compensatory damages under the AIDEA, but full relief in these circumstances also includes formal reinstatement, retroactive promotion, and back pay, as well as liquidated damages under the ADEA. In addition, an injunction against further reprisal is necessary.
WMATA has represented to the court that, in light of the underlying findings and conclusions by the jury and the court, WMATA does not object to the scope of relief as set forth below, except as to prejudgment interest.
A. Promotion
Jones was unlawfully denied promotions to TS-4 on October 1, 1987 and again in 1988. As relief, WMATA shall promote Judy Jones to TS-4 retroactive to October 1, 1987, with all increases in pay and benefits from that date forward.
B. Back Pay
Jones is entitled to the difference in pay and benefits between TS-3 and TS-4 from October 1, 1987 to her termination on March 7, 1991. Thereafter she is entitled to back pay at the appropriate TS-4 level for the period when she was out of work-March 7, 1991 to May 10, 1994. Jones was reinstated at the TS-3 level, so she is further entitled to the difference in pay between TS-3 and TS-4 for the period May 10, 1994 until the date when she first actually, begins drawing pay as a TS-4.
C. Prejudgment Interest
Jones requests prejudgment interest against WMATA as a result of her Title VII claims for failure to promote and termination of employment. This court concludes that Ms. Jones is so entitled.
Plaintiff argues that under Barbour v. Merril, 48 F.3d 1270, 1279 (D.C. Cir. 1995), there is a presumption in favor of imposing prejudgment interest in Title VII suits, and further, that this court should follow its prior award of such prejudgment interest in this case. Order, August 6, 1992, at 12-13. Defendant WMATA, however, contends that plaintiff misplaces its reliance on Barbour, because WMATA enjoys governmental immunity from prejudgment interest awards, whereas in Barbour a private entity was involved. WMATA also argues that this court's earlier determination on this issue was erroneous.
Defendant cites Kingston Constructors v. WMATA, 860 F. Supp. 886, 890 (D.D.C. 1994) for the assertion that WMATA's immunity is a bar to prejudgment interest in such circumstances. Kingston, however, dealt with WMATA's immunity while acting in a discretionary capacity with respect to its dealings with contractors for the design, procurement, fabrication, and installation of equipment — and WMATA subsequent breach of settlement agreements evolving from disputes with those contractors. Id. at 887-89. The Kingston court found that WMATA retained immunity when acting in a discretionary capacity, and found WMATA was so acting in its dealings with the contractor plaintiffs. That determination, however, is irrelevant to whether WMATA is liable for prejudgment interest arising out of a Title VII action.
WMATA is an employer as defined by Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. § 2000e et seq. As such, it is liable for, as opposed to immune from, discrimination against its employees on the basis of sex. As this court today finds, WMATA did, indeed, violate Title VII when it denied her promotions in 1987 and 1988, and again when it terminated her employment in 1991. The issue of whether prejudgment interest, an incident of the harm Ms. Jones suffered, should be awarded, follows.
As this court indicated in 1992, prejudgment interest is available for violations of Title VII. See Chamberlin v. 101 Realty, Inc., 915 F.2d 777 (1st Cir. 1990) (rehearing denied); Bunch v. Bullard, 795 F.2d 384 (5th Cir. 1986); Townsend v. WMATA, 746 F. Supp. 178, 188 (D.D.C. 1990).
Ms. Jones, having suffered injury as a result of unlawful sex discrimination under Title VII, is therefore entitled to prejudgment interest in conjunction with the amounts of back pay awarded in today's order. Memorandum Opinion II, at 22.
D. Liquidated Damages
The jury has determined that WMATA committed willful violations of the ADEA when it refused to promote Jones to TS-4 in 1988, when it terminated her, and when it failed to reinstate her. Under the ADEA, she is entitled to liquidated damages in an amount equal to back pay with respect to any such willful violations. 29 U.S.C. § 626 (b). The first ADEA violation found by the jury occurred on or about February 2, 1989. Accordingly, the amount of liquidated damages due Jones is a sum equal to the back pay, computed as indicated at Part B above, for the period from February 2, 1989 through the date upon which she first actually begins drawing pay as a TS-.4.
E. Injunctive Relief
Jones seeks broad-based injunctive relief that would prohibit both WMATA and Fady Bassily from retaliating against Jones, and against other employees similarly situated, for engaging in protected EEO activity. Although the scope of relief that she requests is more commonly associated with a class action, Jones argues that a class need not be certified in order to obtain a broad injunctive remedy. See 7A CHARLES A. WRIGHT, ARTHUR R. MILLER MARY KAY KANE, FEDERAL PRACTICE AND PROCEDURE § 1771, at 409 (1986) (relief for individual civil rights plaintiff may benefit all persons subject to unlawful practice). Jones further maintains that the injunction must extend to similarly situated WMATA employees because of the pervasive nature of Bassily's retaliatory practices. See Bailey v. Patterson, 323 F.2d 201, 205-06 (5th Cir. 1963), cert. denied, 376 U.S. 910, 84 S.Ct. 666, 11 L.Ed.2d 609 (1964) (inflexible, undeviating official policy of segregation dictates that injunction cover all persons similarly situated).
WMATA responds that it has no objection to a narrowly worded injunction prohibiting WMATA (only) from retaliating against Jones (only). But because this case was pleaded "and tried as a single disparate treatment claim, WMATA protests the scope of the relief sought by Jones. WMATA reminds the court that Jones did not request injunctive relief at all in her Third Amended Complaint, or even in her Pretrial Statement. By contrast, the injunctive relief in Bailey, upon which Jones relies, was sought from the beginning; moreover, the objective of that relief was to prohibit racial segregation on common carriers and in transportation terminals — a goal which could not practically be limited to one plaintiff. WMATA points instead to Brown v. Trustees of Boston Univ., 891 F.2d 337, 361 (1st Cir. 1989), cert. denied, 496 U.S. 937, 110 S.Ct. 3217, 110 L.Ed.2d 664 (1990), where the court narrowed a broad injunction against sex discrimination so that it protected only the plaintiff.
In this instance, the jury was not asked to find retaliation against other employees; nor was Jones' case built upon statistical evidence of disparate impact. That the court credited some third party evidence of retaliation is insufficient to justify the sweeping relief that plaintiff seeks. Indeed, in Townsend v. WMATA, 746 F. Supp. 178 (D.D.C. 1990), the court found discrimination but explicitly did not find retaliation. Furthermore, Bassily is neither a party to this lawsuit nor presently a WMATA employee; an injunction against him would raise due process concerns.
The court, therefore, agrees with WMATA that injunctive relief must be limited to prohibiting WMATA from retaliating against Jones for engaging in protected EEO activity.
F. Attorneys' Fees
Under Title VII, 42 U.S.C. § 2000e-5 (k), and the ADEA, 29 U.S.C. § 626 (b), 216(b), Jones is entitled to reasonable attorneys fees.
Pursuant to Fed.R.Civ.P. 54, the court shall enter final judgment on legal and equitable relief for the plaintiff. A separate order shall issue this date.
FINAL JUDGMENT AND ORDER II
Upon considering the arguments of counsel, testimony from witnesses at trial, exhibits received in evidence, and for the reasons more fully set forth in accompanying Memorandum Opinion II, the court hereby enters final judgment on the non-jury issues tried before the court.
The court finds that defendant Washington Metropolitan Area Transit Authority (WMATA) retaliated against plaintiff Judy Jones in violation of Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq., when WMATA denied Jones' promotion to TS-4 in 1987 and again in 1988, and when WMATA terminated Jones in 1991. The court rejects Jones' claim that WMATA discriminated against her on the basis of sex in violation of Title VII when it denied her promotion to TS-5 in 1987.
Based upon these findings, and the prior findings of the jury under the Age Discrimination in Employment Act (ADEA), 29 U.S.C. § 621 et seq., the court hereby orders the following relief:
1. Reinstatement and Promotion. Jones is entitled to reinstatement with WMATA. Jones shall be promoted to TS-4 effective October 1, 1987. and will be accorded all increases in pay and benefits that would ordinarily accrue to an employee promoted to TS-4 on that date.
2. Back Pay. WMATA shall pay Jones a sum equal to the total of (a) the difference in pay and benefits between her actual earnings as a TS-3 and what she would have earned as a TS-4 for the period October 1, 1987 to March 7, 1991, (b) what she would have earned as a TS-4 for the period March 7, 1991 to May 10, 1994, and (c) the difference between her actual earnings as a TS-3 and what she would have earned as a TS-4 for the period May 10, 1994 to the date when WMATA formally places Jones on the payroll as a TS-4. The parties shall endeavor to stipulate the amount of back pay due under this formula and shall report to the court in 30 days, either setting forth the stipulated amount or explaining any differences requiring the court's resolution.
2. Prejudgment Interest. WMATA shall pay Jones prejudgment interest accordingly. The parties shall endeavor to stipulate the amount of prejudgment interest due and shall report to the court in 30 days, either setting forth the stipulated amount or explaining any differences requiring the court's resolution.
3. Liquidated Damages. WMATA shall pay Jones a sum equal to the amount of back pay, computed as provided in Paragraph 2, for the period commencing on February 2, 1989 and terminating on the date when WMATA formally places Jones on the payroll as a TS-4. The parties shall endeavor to stipulate the amount of liquidated damages due under this formula and shall report to the court in 30 days, either setting forth the stipulated amount or explaining any differences requiring the court's resolution.
4. Injunctive Relief. WMATA is hereby permanently enjoined from taking any form of retaliatory action against Jones for engaging in activity protected by Title VII or the ADEA, including formal or informal presentation of complaints of discrimination.
5. Attorneys' Fees. Jones is entitled to reasonable expenses and attorneys' fees. The parties shall confer and seek to agree on the amount of fees and expenses due. If the parties are unable to agree, Jones shall submit a fee application in 30 days.
SO ORDERED.