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TERRY v. GALLEGOS

May 16, 1996

JOSEPH RAY TERRY, Plaintiff,
v.
TONY E. GALLEGOS, Chairman of the UNITED STATES EQUAL EMPLOYMENT OPPORTUNITY COMMISSION, Defendant.



The opinion of the court was delivered by: MCCALLA

 Plaintiff Joseph Ray Terry, Jr., a white male attorney employed as Regional Attorney by the EEOC, brings this suit against Tony E. Gallegos, as Chairman of the United States Equal Employment Opportunity Commission (EEOC), alleging race and sex discrimination, and retaliation in violation of Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. § 2000e-2(a)(1) and 2000e-3(a) (1995). A bench trial was conducted on November 21, 22, 23, 25, 1994, and December 1, 2, 5, 15, 1994, with final submittals and argument completed on September 29, 1995. *fn1" As set forth in this Opinion, the Court finds that the

 EEOC discriminated against plaintiff on the basis of race as to Counts I, III, and IV, discriminated on the basis of sex as to Claim III, and illegally retaliated against plaintiff as to Counts II, III, and IV.

 The EEOC is a federal government organization entrusted with the investigation and prosecution of alleged violations of Title VII of the Civil Rights Act of 1964, and other antidiscrimination statutes. (Stip. 5.) Plaintiff Terry has been the Regional Attorney in the EEOC's Memphis District Office from 1979 to the present, during which time he has served in other EEOC positions in a temporary capacity.

 Over the course of his employment at the EEOC and during the period relevant for the present case, plaintiff applied to or expressed interest in a significant number of Senior Executive Service (SES) positions. *fn2" This action raises four claims involving his non-selection for ten SES positions; plaintiff applied for eight of the positions raised in this claim. *fn3"

 In the action before this Court, plaintiff specifically asserts the he was discriminated against on the following bases: (1) race and retaliation as to the SES District Director selections in Atlanta and Cleveland in 1984, *fn5" (2) race and retaliation as to the SES District Director selections in St. Louis, Indianapolis, Charlotte, and Philadelphia in 1986-1987; (3) race, sex, and retaliation in connection with the SES District Director selections in Charlotte, Atlanta, and Seattle in 1991; and (4) race and retaliation in connection with his non-selection for the SES position of Deputy General Counsel in 1992. Plaintiff's Proposed Findings of Fact and Conclusions of Law (Pl.'s Findings, 2-3).

 I. BACKGROUND

 The SES was created by the Civil Service Reform Act of 1978, 5 U.S.C. § 3390, et seq.6 (Stip. 7.) Since January 1983, approximately forty-four SES positions have existed in the EEOC, twenty-three of which are District Director positions, and the remaining twenty-one are headquarters management positions. (Stip. 6.)

 SES officers are selected on a competitive or non-competitive basis. *fn7" Selections are made from a certification list, ideally from the smaller select number deemed "best qualified" on that list. (Tr. 54.) Competitive selection requires applying through a formal process, whereby the EEOC announces SES vacancies and accepts applications from persons in and outside the EEOC. (Tr. 1422-24.) Non-Competitive selection requires neither an application nor a formal vacancy announcement, and is available only to graduates of the Candidate Development Program (CDP). (Stip. 37.)

 The CDP is a part-time program that includes formal government executive training and temporary assignments, designed to allow candidates to acquire management skills necessary for service in the SES. (Stip. 37.) Persons compete for acceptance to the CDP under procedures similar to those required for entry into the SES. *fn8" (Stip. 30.) In June 1983, plaintiff became a member of the CDP's first graduating class. (Stip. 31, 39.)

  Upon completion of the CDP, an employee is certified, for a designated length of time, by the Office of Personal Management (OPM) as having satisfied the executive qualifications required for SES officials. *fn9" (Stip. 30, 37, 39.) The CDP graduate who satisfies the requirements of a certain SES position may be appointed to the SES without having to apply; but appointment is not guaranteed. (Stip. 37-38; Thomas dep. 111, 114-15.) According to Justice Thomas, a former Chairman of the EEOC, the purpose of the CDP was to "groom managers in the federal government who were then eligible for non-competitive selection to SES level position any place in the government." *fn10" (Thomas dep. 10.) William Bartlett, Director of the Compliance and Control Division in the Office of Federal Operations, testified that there was a "keen interest in the selections for the candidate program...these were the people who were being identified for future placement." (Tr. 1454.) Gilbert Sandate, Director of EEO and responsible for adjudicating employment discrimination complaints filed by EEOC employees, testified that CDP graduation "was tantamount to eligibility for non-competitive appointment to an SES position prior to any further consideration of other candidates." (Tr. 577.) A CDP graduate's name appears on certification lists for SES vacancies, irrespective of whether that graduate has expressed interest or applied for the position in question. (Tr. 603.)

 Ten persons have graduated from the CDP since its inception. *fn11" (Tr. 1870; Stip. 58.) Of these, five have been non-competitively placed into SES positions. *fn12" Plaintiff and Ronnie Blumenthal comprised the first CDP graduating class. (Tr. 1637; Stip. 59.) CDP participation and, specifically, the CDP graduations of plaintiff and Blumenthal, were widely publicized within the EEOC. (Tr. 46-47, 566, 1422.)

 During the relevant period, the Chairmen of the EEOC were Justice Thomas (from 1982 to March 1990) and Evan Kemp (from March 1990 to April 1993). (Stip. 20.) The heads of the various EEOC offices report to the Chairman. (Stip. 5.) James Troy held the position of Director of the Office of Program Operations (OPO) from October 1, 1984, until January 27, 1995. (Stip. 11.) The OPO has oversight responsibility for investigating and processing charges of employment discrimination, and jurisdiction over the district offices; the Director of OPO reports to the Chairman. (Stip. 8-10.) Another office, that of the Office of the General Counsel (OGC), has primary responsibility for litigating cases on behalf of the EEOC. (Stip. 16.) The OGC has two SES positions, that of General Counsel and the Deputy General Counsel. *fn13" Donald R. Livingston has been acting General Counsel or General Counsel from June 1990 to June 1993. (Stip. 22.)

 EEOC field offices are managed by District Directors, who report directly to the appropriate field manager in the OPO. *fn14" (Stip. 10.) The general duty of the District Director, who is usually an SES officer, *fn15" is to enforce federal legislation prohibiting discrimination through investigation, conciliation, litigation, and coordination with the district. *fn16" (Stip. 9.)

 The Regional Attorney, a non-SES position, reports to the OGC on issues relating to litigation, and reports to the OPO Director and the District Director of the particular field office on all non-litigation issues. (Stip. 16.) The Regional Attorney is responsible for litigating cases. The Regional Attorney and the District Director, in conjunction, determine whether to recommend filing a civil action. The Regional Attorney then presents the EEOC's recommendation to the Commissioners in a memorandum, for which he and the District Director share responsibility. (Id.)

 Currently Regional Attorney of the EEOC's Memphis field office, Terry received his J.D. degree from Loyola University in New Orleans in 1965, and upon graduation, worked for the Civil Rights Division of the United States Department of Justice on voting rights. (Tr. 11-14; See Ex. 87 for Terry's curriculum vitae.) In 1969, Terry became Regional Counsel for Equal Opportunity at the Department of Housing and Urban Development, and in 1970, he worked as the EEOC's Regional Counsel in Atlanta. (Tr. 15-17.) In 1972, plaintiff became acting Regional Attorney of the Atlanta Litigation Center; *fn17" in 1979, he assumed his present position. *fn18" (Tr. 18-20, 29.)

 While in the CDP, plaintiff worked as (1) Assistant Director of the Alaska Human Rights Commission, from July to September 1981, (2) Assistant to the Director of the NLRB's Memphis office, from April to June 1982, and (3) Director of Region III of the OPO from March to July 1983. (Stip. 33-35.) At the NLRB, plaintiff fully participated in the case management process. (Tr. 43; Fleischut dep. 6-7.) As Director of Region III, plaintiff supervised seven District Directors. (Tr. 44-45.)

 On June 27, 1983, plaintiff graduated from the CDP, at which time OPM certified him, until June 27, 1988, as having satisfied the executive qualifications required for the SES. (Stip. 39.) While certified, plaintiff could be selected non-competitively; once his certification had expired, he could only be promoted to the SES by applying and competing for an announced position. (Id.) Effective January 1, 1994, plaintiff's certification was reinstated through December 31, 1996. (Stip. 40.)

 On March 3, 1984, Chairman Thomas appointed plaintiff acting District Director in Memphis. (Stip. 41.) Terry remained in this position until 1985, at which time he resumed his position as Regional Attorney at the Memphis office.

 Since October 1, 1984, Troy as Director of the OPO has signed in concurrence all of plaintiff's performance evaluations. (Stip. 26.) Similarly, Troy has reviewed elements of plaintiff's job duties relating to administration, personnel, employee relations, collective bargaining, budget, travel and legal unit compliance interaction. (Id.) Plaintiff's performance evaluations at the EEOC have all been at the highest of five levels, "outstanding," or at the second highest level, "highly effective." *fn19" With the exception of a 1991 interim appraisal in which plaintiff was criticized for a "few exceedingly poor submissions," *fn20" all evidence presented in this action demonstrates that plaintiff's performance at the EEOC was highly regarded by supervisors and colleagues. *fn21" Plaintiff has received several special awards, including 1988 Regional Attorney of the Year in 1989. (Tr. 38-39; Ex. 84.)

 II. APPLICABLE LAW

 Title VII of the Civil Rights Act of 1964 provides in relevant part:

 
It shall be unlawful employment practice for an employer--
 
(1) to fail or refuse to hire or to discharge any individual, or otherwise to discriminate against any individual with respect to his Compensation, terms, conditions, or privileges of employment, because of such individual's race, color, religion, sex, or national origin.

 42 U.S.C. § 2000e-2(a). Title VII also provides:

 
It shall be unlawful employment practice for an employer to discriminate against any of his [or her] employees or applicants for employment...because (he or she) has made a charge, testified, assisted or participated in any matter in an investigation, proceeding, or hearing under this subchapter.

 42 U.S.C. § 2000e-3(a).

 In bringing a discrimination claim, the first step for an employment discrimination plaintiff is to establish a prima facie case of discrimination. The burden of proof to establish a prima facie case lies exclusively with the plaintiff. McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802, 36 L. Ed. 2d 668, 93 S. Ct. 1817 (1973); St. Mary's Honor Center v. Hicks, 509 U.S. 502, 113 S. Ct. 2742, 2745, 2748, 125 L. Ed. 2d 407 n.3 (1993). Plaintiff can establish a prima facie case by direct or indirect evidence. *fn22" In the absence of direct evidence of discrimination, the plaintiff may meet his burden by demonstrating inferentially that he was a victim of intentional discrimination. See McDonnell Douglas, 411 U.S. at 802; Texas Dept. of Community Affairs v. Burdine, 450 U.S. 248, 256, 67 L. Ed. 2d 207, 101 S. Ct. 1089 (1981).

 Since the plaintiff in this case is relying on indirect evidence, he must initially establish a prima facie case, thereby creating a rebuttable presumption of discrimination. To establish a prima facie case of intentional discrimination based on failure to promote, a plaintiff must establish each of the following elements: (1) he is a member of the protected class; (2) he was qualified and applied for a promotion; (3) despite his qualifications, he was denied the promotion; and (4) the employer filled the position with another person who was not a member of the plaintiff's protected class. McDonnell Douglas, 411 U.S. at 802 (setting forth criteria for a plaintiff who brings an illegal discharge claim); Burdine, 450 U.S. at 256 (applying the McDonnell Douglas factors to discriminatory failure to promote); Mitchell v. Toledo Hosp., 964 F.2d 577, 582 (6th Cir. 1992). Plaintiff also may establish his prima facie case by showing that he was a member of a protected class and that a "comparable, non-protected person was treated better." Mitchell, 964 F.2d at 582-83. *fn23"

 In a retaliation claim, a plaintiff alleges that he has been mistreated for engaging in protected activity, and that the employer's motivations are therefore illicit. As with a race or sex discrimination claim, the ultimate burden of proving retaliation in a Title VII action remains at all times with the plaintiff. Wrenn v. Gould, 808 F.2d 493, 500 (6th Cir. 1987), cert. denied, 484 U.S. 1067, 98 L. Ed. 2d 996, 108 S. Ct. 1032 (1988). To establish a prima facie case of retaliation, plaintiff must show that (1) he engaged in an activity protected by Title VII; (2) his exercise of civil rights was known by the defendant; (3) the defendant thereafter took an employment action adverse to plaintiff; and (4) there was a causal connection between the protected activity and the adverse employment action. Christopher v. Stouder Memorial Hospital, 936 F.2d 870, 877 (6th Cir. 1991); Zanders v. National Railroad Passenger Corp., 898 F.2d 1127, 1134-35 (6th Cir. 1990); Wrenn, 808 F.2d at 500.

 In order to satisfy the causal-link element of the prima facie case requirement, a plaintiff must produce evidence "sufficient to raise the inference that [the] protected activity was the likely reason for the adverse action." Zanders, 898 F.2d at 1135. The mere fact that a plaintiff suffers an adverse employment action subsequent to his participation in protected activity is insufficient to establish the fourth element of the prima facie case requirement. Cooper v. City of North Olmsted, 795 F.2d 1265, 1272-73 (6th Cir. 1986). Nonetheless, establishing a prima facie case of retaliation is a burden easily carried. Wrenn, 808 F.2d at 500.

 Assuming plaintiff meets his prima facie case of discrimination or retaliation, the burden of production, not persuasion, shifts to defendant to articulate a legitimate non-discriminatory reason for its action. Burdine, 450 U.S. at 254; Wrenn, 808 F.2d at 501; Zanders, 898 F.2d at 1134 (stating that the sequence and burden of proof applicable to disparate treatment cases are applicable to retaliation claims). By producing evidence (whether ultimately persuasive or not) of nondiscriminatory reasons, defendant can sustain its burden of production, thus placing itself in a better position than if it had remained silent. St. Mary's Honor Center, 113 S. Ct. at 2748. Defendant is not required to prove the absence of a discriminatory motive. Board of Trustees of Keene State College v. Sweeney, 439 U.S. 24, 99 S. Ct. 295, 58 L. Ed. 2d 216 (1978).

 Although the burden of production shifts to the defendant, the burden of persuasion always remains with the plaintiff. Mills v. Ford Motor Co., 800 F.2d 635, 639 (6th Cir. 1986). Once the employer has come forward with a non-discriminatory reason for firing the employee, the presumption of discrimination is rebutted, and the plaintiff must produce sufficient evidence from which the fact-finder may reasonably reject the employer's explanation. Burdine, 450 U.S. 248, 255-56, 67 L. Ed. 2d 207, 101 S. Ct. 1089; Manzer v. Diamond Shamrock Chemicals Co., 29 F.3d 1078, 1083 (6th Cir. 1994). The trier of fact proceeds to decide the ultimate question: whether plaintiff has proven that the defendant intentionally discriminated against him because of his race or sex or prior assertion of his rights. 113 S. Ct. at 2749. Rejection of the defendant's proffered reasons will permit the trier of fact to infer the ultimate fact of intentional discrimination, but rejection does not compel judgment for the plaintiff.

 The Title VII plaintiff at all times carries the ultimate burden of proving that the proffered reasons are pretextual and that the adverse employment action is the product of an intent to discriminate because of the plaintiff's race. Id.; Galbraith v. Northern Telecom, Inc., 944 F.2d 275, 279 (6th Cir. 1991), cert. denied, 503 U.S. 945, 117 L. Ed. 2d 637, 112 S. Ct. 1497 (1992). A plaintiff may show pretext by demonstrating by a preponderance of the evidence either, "(1) that the proffered reasons had no basis in fact, (2) that the proffered reasons did not actually motivate his discharge, or (3) that they were insufficient to motivate discharge." Manzer, 29 F.3d at 1084.

 The plaintiff has "'a full and fair opportunity to demonstrate' through presentation of his own case and through cross-examination of the defendant's witnesses, 'that the proffered reason was not the true reason for the employment decision'...and that race [or sex] was." St. Mary's Honor Center, 113 S. Ct. at 2752 (quoting Burdine, 450 U.S. at 256). Proof of pretext can occur throughout the trial. Ford v. Nicks, 703 F. Supp. 1296, 1302 (M.D. Tenn. 1988). During the pretext stage, the trial judge evaluates all the evidence and theories in order to determine which explanation of the challenged employment action the judge believes. Id. In making a determination of whether the testimony proves a violation of Title VII, the court should consider reasonable inferences drawn from the totality of facts, the conglomerate of activities, and the entire web of the circumstances presented by the evidence on the record as a whole. Id. at 1303 (quoting Jeffries v. Harris County Community Action Association, 425 F. Supp. 1208, 1216 (S.D. Tex. 1977), vacated on other grounds, 615 F.2d 1025 (5th Cir. 1980); accord EEOC v. St. Joseph Paper Co., 557 F. Supp. 435, 439 (W.D. Tenn. 1983)).

 III. DISCUSSION

 The central claims raised by plaintiff involve the Atlanta selection in 1984, the Indianapolis selection, the Detroit District Directorship offer, the 1991 Seattle and Charlotte selections, and the Deputy General Counsel selection. The Court's discussion will focus on these claims, and include other selections raised in plaintiff's complaint to the extent they supplement or explain the above mentioned claims. This action turns on defendant's motivations for plaintiff's non-selection. For this reason, the Court's Opinion requires a lengthy factual analysis.

 A. Plaintiff's History of Non-Selection at the EEOC

 Terry has sought, but has not achieved, placement in the SES since 1981. (Tr. 39.) He alleges that he has not been placed into the SES because the EEOC discriminates against white males generally, *fn24" that he has been the victim of such discrimination and the victim of retaliation for bringing EEO complaints.

 In 1981, plaintiff competed for admission to the CDP, believing that successful completion would improve his chances of obtaining an SES position. To support the reasonableness of this belief, plaintiff introduced a letter to the Commissioners from Beverly Gary, Director of Personnel, which states, "completion of this program satisfies all requirements for certification by a qualified review board and permits graduates to enter non-competitively any SES position for which he or she is technically qualified." (Tr. 40; Stip. 31; Ex. 1.) Sandate confirmed the reasonableness of Terry's belief that graduation from the CDP most likely would result in placement in the SES. *fn25" (Tr. 577.)

 On March 3, 1984, plaintiff was appointed acting District Director of the Memphis EEOC office. At the time of this appointment, the overall performance of the Memphis District Office was poor and the morale of the staff low. (Tr. 443; Stip. 42.) Odessa Shannon, then Director of OPO, urged Terry to take the position, stating that Terry was the only person in the EEOC at that time qualified to keep the Memphis office together. (Tr. 76.) Terry accepted a temporary placement, but told Joseph Stanley Bennett, then Regional Director of Region II in OPO, that he was interested in a permanent District Directorship in Atlanta or St. Louis. (Tr. 77, 91.) During his one-year period as acting District Director, plaintiff's pay did not increase, but he was held to the same standards and expectations as a District Director. (Tr. 81-82.) Applying these standards, plaintiff performed well and improved the Memphis office. (Tr. 444.)

 In 1984, while plaintiff was acting District Director of the Memphis District Office, the following four SES District Director vacancies were announced: (1) Memphis; (2) St. Louis; (3) Atlanta; and (4) Cleveland. Plaintiff submitted an SF-171 form, with a cover letter expressing interest in the Memphis District Directorship. (Tr. 83; Ex. 44.) Plaintiff did not apply for the other available District Directorships in part because he believed he would be appointed Memphis District Director as a result of his present good performance in that office. (Tr. 91-92; Ex. 44.) Similarly, he believed Harold Ferguson, then Deputy Director in Cleveland would be appointed District Director of the Cleveland office, and Harris Williams, then acting District Director of the Atlanta office, would be appointed to the Atlanta Directorship. *fn26" (Tr. 92.) Plaintiff also reasoned that, should those individuals not be appointed, his application was unnecessary because, as a CDP graduate, he was eligible for noncompetitive placement. (Id.)

 Plaintiff was not selected for any of the four District Directorships. *fn27" Ferguson, a black male, was selected District Director of the Cleveland office, and Williams, a black male, was selected District Director of Atlanta. Walter Grabon, a white male, was selected for the Memphis position. Bennett, who was a party to the meeting with Troy concerning the 1984 District Director openings, explained that Grabon was selected because the EEOC wanted someone from outside the Memphis office to assume the Directorship. (Tr. 482.) Bennett also stated that Terry had made a mistake in failing to apply for the SES in St. Louis, Cleveland and Atlanta. (Tr. 103.

 Williams served as Charlotte District Director before the EEOC's reorganization in 1979, served as the Deputy Director in Charlotte and Detroit, and as acting District Director of Atlanta. (Tr. 1098-1100; Ex. 51.) Ferguson served as Deputy Director in Cleveland for several years before his appointment to the SES. (Tr. 61, 495-96.) Unlike plaintiff, Williams never held any rank above a GS-15 before his appointment to the Atlanta District Directorship, had not completed the CDP, had not graduated from high school, had been found by a federal district judge to have retaliated against a union official for processing sexual harassment charges, and had been found to lack credibility as a sworn witness by that same judge. *fn28" (Tr. 121-131; Ex. 195.) Similarly, Ferguson did not have executive experience comparable to that of plaintiff; plaintiff had been a GS-15 longer, and had held positions requiring a greater breadth of responsibility and knowledge. (Tr. 123, 190.)

 On November 25, 1985, plaintiff submitted a SF-171 in which he stated his interest in the District Directorships in St. Louis, Charlotte, Philadelphia and any "other" SES positions. (Tr. 135-36; Stip. 50; Ex. 79.)

 In January 1986, Sandate telephoned plaintiff and initiated a discussion regarding plaintiff's terms for settling his May 6, 1985, EEO charge. (Tr. 145, 569, 576; Ex. 14.) Troy had authorized Sandate's negotiations with Terry, and had specifically asked Sandate to determine what District Directorship Terry desired. (Tr. 575-76, 578.) Plaintiff told Sandate that he was interested in all pending SES vacancies except Detroit. (Tr. 146, 578-79.) Sandate remembers reporting this conversation to Troy, and specifically recalls telling Troy that plaintiff expressed interest in the St. Louis and Indianapolis positions. (Tr. 579-80.) Troy testified that he does not recall being informed by Sandate that Terry was not interested in the Detroit Directorship. *fn29" (Tr. 1127.)

 In February 1986, Bennett offered Terry the District Directorship of EEOC's Detroit office. (Tr. 147, 454-58; Stip. 52; Ex. 98.) Terry explained to Bennett that the Detroit Directorship was the only District Director vacancy for which he had expressly stated disinterest, and reiterated his interest in all other SES vacancies. (Tr. 147.) Bennett recommended that Terry accept the selection because the Detroit office needed his legal skills, and Detroit was the only offer of a District Directorship that plaintiff would receive at that time. (Tr. 147-48.)

 Concerned that defendant would excuse subsequent non-selection to the SES on his rejection of the Detroit offer, *fn30" Terry decided to accept the offer provided he received a decent salary increase. (Tr. 148-51.) In response to negotiations with plaintiff, Bennett contacted Troy in an attempt to raise the offer above an ES-4 level. (Tr. 151-52, 456-57.) Upon learning that Troy refused to raise the Detroit offer above an ES-4 level (which salary would result in a marginally higher gross income but lower net income given tax differences between the regions), plaintiff declined the offer in late February 1986. (Tr. 152-53; Ex. 97.)

 At the time Terry declined the offer, he reiterated his interest in the other available Directorships to Bennett by telephone and letter. (Tr. 155, 457; Stip. 53; Ex. 97.) Plaintiff had no further contact with Bennett regarding the positions. (Tr. 137-38; Stip. 54; Ex. 65.)

 On February 20, 1986, plaintiff applied for the Indianapolis District Directorship, emphasizing in his cover letter that, as a CDP graduate, he was not required to apply. (Id.) The Indianapolis position was subsequently cancelled. (Id.) In October 1986, the Indianapolis Directorship was announced for a second time. (Stip. 55.) On November 4, 1986, plaintiff again applied and stated his eligibility for non-competitive placement. (Tr. 158-159; Ex. 66.) On April 3, 1987, the position was cancelled again. (Stip. 55; Ex. 78.) On May 8, 1987, the Indianapolis position was announced for a third time. (Tr. 160; Stip. 55; Ex. 64.) Plaintiff did not apply because he felt doing so would be futile. *fn31" (Tr. 161.)

 Plaintiff's OPM certification expired in June 1988, and around 1989, plaintiff ceased applying to or expressing interest in any SES openings. (Tr. 166; Stip. 39.) On April 17, 1991, he applied for the Charlotte District Directorship. (Stip. 63; Ex. 71.) On June 7, 1991, plaintiff wrote to Kemp expressing interest in the Atlanta District Directorship. (Tr. 178; Ex. 54.) The Charlotte vacancy was subsequently cancelled. On June 18, 1991, two African-Americans were non-competitively selected to fill the vacancies. *fn32" Plaintiff received a letter from Troy returning plaintiff's application to the Atlanta position, stating it had been filed by reassignment of an SES person. (Tr. 186; Ex. 55.)

 In 1991, plaintiff and Janet Leino, a white female, applied to the Seattle District Directorship; both were on the certification list for that position. (Ex. 95.) Leino had served as Seattle District Director, at a GS-15 level, since 1988, and had received highly effective performance ratings for fiscal years 1989 through 1991. *fn33" (Stip. 69; Tr. 1136-39; Ex. 91-92, 94.) Before that time, she was a GS-12 at the EEOC, and had worked for the NLRB as a labor management relations investigator and a supervisory investigator. (Tr. 187-88, 191-92; Ex. 88.) The Seattle District Director Ratings Panel gave plaintiff a slightly higher rating than Leino. (Admission 24.) On July 24, 1991, Troy recommended Leino for the position, and on September 3, 1991, she was appointed. (Tr. 1140, Stip. 70; Ex. 89.)

 On May 28, 1992, Terry and James Neely, a black male, applied for the position of Deputy General Counsel. (Stip. 71; Ex. 111, 116.) Neely was not a CDP graduate, had slightly lower evaluations, experience, and responsibilities than plaintiff. (Tr. 198-99.) Neely graduated from law school in 1972, at which time plaintiff was already directing the Atlanta litigation center. (Tr. 193.) At the time of his application for Deputy General Counsel, Neely was serving as acting Deputy General Counsel, to which position he was appointed on December 5, 1991. (Stip. 73; Ex. 117.) Plaintiff argues that Neely's appointment as acting Deputy General Counsel constitutes discriminatory preselection, constructed to make Neely the more qualified candidate at the time of selection for the Deputy General Counsel position. The Deputy General Counsel Ratings Panel rated Neely slightly higher than plaintiff. (Tr. 717-20; Ex. 109.) On July 6, 1992, Neely was appointed Deputy General Counsel. (Stip. 74.)

 B. Credibility Assessment of James Troy

 James Harrison Troy has been employed at the EEOC since August 8, 1978, in the SES since January 28, 1980, and as Director of OPO since October 1, 1984. (Tr. 1028-29.) Evaluating his testimony is central to the Court's analysis in this matter because Troy had extensive power and discretion in selecting SES officials. Further, defendant's proof of its legitimate non-discriminatory reasons for the District Director selections rests almost exclusively on Troy's testimony, particularly with regard to the Atlanta, Indianapolis, Charlotte and Seattle positions. *fn34"

 As Director of OPO, Troy selected the vast majority of SES officers, and all but five of the present District Directorships have been filled by Troy. (Tr. 1082, 1166-73, 1187-88.) With only one exception, Justice Thomas in his capacity as Chairman followed Troy's appointment recommendations, and Chairman Kemp has followed all of Troy's recommendations. (Tr. 1188-89; Thomas dep. 22-23.) Justice Thomas testified that Troy has been the "de facto" decision-maker on selections to the SES. (Tr. 1189.) In addition to holding a powerful position, *fn35" Troy had great discretion in how he exercised his power. Troy did not follow formal selection procedures. Testimony and exhibits demonstrate that OPM regulations require that the ERB oversee the entire merit selection process. (Ex. 29.) In practice, since Troy has served as Director of OPO, the ERB has not followed the merit selection process for entry into the SES. *fn36" (Tr. 1177-83.)

 Troy was impeached on a number of issues, some material in this case and others tangential to the case but significant in their reflection on the credibility of Troy's testimony. In response to defense questions regarding his testimony on direct, at deposition, and in other cases, Troy admitted that his prior testimony "directly contradicts," *fn37" left a misimpression, *fn38" and was "false." *fn39" (Tr. 1282, 1291-92, 1294, 1296.) Troy explained the discrepancies between his testimony at trial and his prior testimony, stating that he "misread your question" *fn40" and had "misspoken." *fn41" (Tr. 1249, 1281, 1282-83, 1285.) Terry was impeached with respect to the following matters: (1) his review of applications; (2) his interview procedures; (3) the cancelling of SES vacancies in response to the composition of candidates on the best-qualified list; (4) the transfer of employees to effect their retirement; (5) the hiring of Jackie Shelton; (6) the inclusion of plaintiff's name on the Atlanta certification list; (7) the method of selection for the Cleveland position; (8) the impact of plaintiff's refusal of the Detroit offer on future placements; (9) placement of Pedro Esquivel at a level E-5 scale for entry into the SES; (10) the hiring of Leino for the Seattle District Directorship; (11) his reference to Terry as a racist; and (12) Troy's intervention on Mansfield's behalf.

 On direct examination, Troy characterized his role as, one removed from decision-making responsibility, and without access to material used in making SES selections. However, the evidence shows that, as a general rule, Troy was notified concerning significant submissions or other occurrences regarding SES positions, *fn42" and personally reviewed SES applications. While he testified at trial that he did not read SES applications, he stated at deposition that he reviewed applications after receiving the certificate of eligibles to determine what type of recent experience people had. (Tr. 1083, 1281-82, 1284-85.) Troy's involvement in the SES selection process is significant because it confirms his knowledge of applicants' interest in certain SES positions and their respective qualifications. Troy's testimony at trial that he was unaware of plaintiff's NLRB experience because he never reviewed applications is not credible. (Tr. 1286.)

 At trial and at deposition, Troy testified that he has never, in his ten years as Director of OPO, interviewed applicants for SES positions. (Tr. 1292.) In Stern, Troy testified that he had "interviewed the people on the certificate of eligibles." *fn43" (Tr. 1293.) On cross-examination, Troy was impeached in the following manner:

 
Q: Now, which one of your testimony is false, the one in that hearing or the one you gave here today?
 
A: The one in that hearing. *fn44"

 Particularly problematic is Troy's testimony regarding cancellations of vacancy announcements. The testimony is significant because two Indianapolis vacancies to which plaintiff applied were cancelled, and the 1991 Charlotte vacancy was cancelled after plaintiff applied and his name appeared on the best qualified list. At trial, Troy testified that he had never cancelled a vacancy because a candidate he did not wish to select was listed as best qualified. (Tr. 1334-35.) However, this testimony was contradicted by his own prior testimony in Cole. *fn45" addition, Justice Thomas testified that vacancies might be cancelled when the selecting official was dissatisfied with the names that appeared on the certification list. Justice Thomas speculated that the Indianapolis vacancies were cancelled for this reason. *fn46"

 In Cole, Troy testified that he had cancelled vacancy announcements in Detroit and Charlotte because he did not like the people whose names appeared on the certificate list. (Tr. 1336-38.) When cross-examined about this testimony, Troy stated that while he had cancelled the Charlotte vacancy after the certification list had been produced, he had not viewed that list at the time of the cancellation. (Tr. 1338-39.) However, this testimony is contradicted by Troy's own sworn testimony in Cole, *fn47" and by a 1991 memo from Blumenthal, addressed to Troy, specifically naming candidates (including Terry) who appeared on the certificate of eligibles. *fn48"

 At trial, Troy explained that the second vacancy in Indianapolis was cancelled in order to reassign Constance Dupre to Indianapolis from headquarters in Washington D.C. (Tr. 1122.) However, Dupre resigned from the EEOC on February 6, 1987, and the Indianapolis announcement was not cancelled until April 3, 1987. (Dupre dep. 46.) Thus, Troy's given reason for the second Indianapolis vacancy is not believable.

 Troy testified that he had never transferred an employee with the goal of compelling that employee to retire. (Tr. 1220-21.) However, he was contradicted on this point by Bennett, Grabon, Dupre, and Muse. *fn49" (Tr. 463-67, 1828-33; Dupre dep. 43-44; Muse dep. 74, 78-84.) Further, Grabon found Troy's management methods "Machiavellian." (Tr. 1843.) Troy's practice of transferring employees to achieve his own desired end is relevant to the Court's analysis of the District Directorship of Detroit, and supports plaintiff's claim that the offer was made in bad faith.

 In a signed declaration submitted in Cole, Troy stated that Jackie Shelton was hired by the EEOC because she had NLRB experience. *fn50" (Tr. 1296; Ex. 212.) At trial, Troy contradicted this testimony, stating that the declaration was incorrect, and his lawyer was responsible for its language. (Tr. 1296-97, 1959-61, 1977; Ex. 212, 218, 219.) Troy as signatory is responsible for the content of the affidavit. *fn51" The role of NLRB experience in hiring someone is significant to this case because, at the time of the 1984 District Director vacancies, Terry was the only person at the EEOC eligible for non-competitive promotion to the SES who had recent experience with the NLRB's case management procedures. (Tr. 1286.)

 In a counselor's survey report investigating plaintiff's EEO claim of non-selection for Atlanta and Cleveland, *fn52" Troy explained that Terry was not selected for the Cleveland District Directorship because that position had been filled by reassignment by the Chairman. (Tr. 1313.) When impeached with the report, Troy stated, "I'm certain I didn't say that," and acknowledged that the Cleveland position was open to competitive application. (Id.) The evidence confirms that Troy's survey statement was false.

 At trial, Troy stated that Terry's refusal of the Detroit offer demonstrated Terry's inflexibility, and was the reason Troy did not consider plaintiff for future non-competitive selections. (Tr. 1247-48.) At deposition, Troy testified that Terry's refusal of the Detroit offer had no impact on his consideration of Terry for competitive or non-competitive selection. (Tr. 1249.)

 Troy testified that he had never requested from the Chairman a pay rate higher than an ES-4 for a new SES appointee. (Tr. 1227.) On cross-examination, he was impeached with evidence he had recommended the appointment of Pedro Esquivel to the SES, at an ES-5 level. (Tr. 1232-33.) Troy stated that he could not recall appointing Esquivel to an ES-5, nor could he recall having any conversation with Bennett regarding Terry's appointment level for the Detroit Directorship. (Tr. 1233.) Bennett stated that he specifically recalled Troy refusing to pay Terry above an ES-4. (Tr. 457.)

 In a declaration, Troy stated that Janet Leino was hired into the District Directorship of Seattle from the NLRB in July 1988. (Tr. 1288; Ex. 211.) He admitted at trial that this was a false statement. (Tr. 1290-91; Ex. 212.) With regard to the Seattle selection, Troy testified that he merely concurred with the recommendation of Leino by Paula Choate, then OPO West Field Manager. (Tr. 1136, 1349-50.) Choate testified that she had no involvement in Leino's selection. (Choate dep. 5-7.) Choate's testimony ...


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