Opinion
Civ. No: 98-2629, SECTION: "J" (5).
August 28, 2000.
FINDINGS OF FACT AND CONCLUSIONS OF LAW
This matter came on for trial before the Court, sitting without a jury, on May 22 and 23, 2000. The Court allowed the parties to submit post-trial memoranda by June 7, 2000. The Court then allowed the parties until June 20, 2000 to submit additional memoranda concerning the Supreme Court's decision in Reeves v. Sanderson Plumbing Products, Inc., 120 S.Ct. 2097 (2000), at which time the Court took the matter under advisement. Having considered the pleadings, testimony and evidence at trial, arguments of counsel, and applicable law, the Court now renders its Findings of Fact and Conclusions of Law, on the issue of liability alone, pursuant to Federal Rule of Civil Procedure 52(a). To the extent the findings of fact are more properly classified as conclusions of law, they should be so considered. To the extent the conclusions of law are more properly classified as findings of fact, they should be so considered.
FINDINGS OF FACT 1.
Plaintiff Angie Gobert, a Native American female, has been employed by Minerals Management Services ("MMS"), a division of the United States Department of the Interior, at its Gulf of Mexico Regional Office in Harahan, Louisiana, since May 1984. She presently holds the position of GS-12 Petroleum Engineer. Gobert has a degree in petroleum engineering from Nicholls State University. In her present position, Gobert has had a great deal of experience in matters related to oil spill prevention and cleanup. She has on occasion served as a spokesperson for MMS while interacting with other agencies and industry.
2.
In January 1997, MMS issued Vacancy Announcement No. S-96-6 for the position of Petroleum Engineer GS-0881-13 in the Office of Field Operations, Plans/Pipeline Section, Plans Unit. Duties for this position included service as a staff engineer specializing in matters related to oil spill prevention, containment, and cleanup; providing expert advice on such matters, and instruction to lower-graded engineers in the Unit during coordination, technical review, and evaluation of regional and site-specific oil spill contingency plans; serving as the monitoring team leader for all unannounced oil spill drills for the region; and serving as spokesperson for MMS in this region on oil spill related matters. Applicants were expected to have one year of specialized experience equivalent to the next lower grade; be knowledgeable in petroleum engineering; understand federal policies and regulations concerning oil spill prevention and response as well as the equipment and methods attendant to oil spill response and prevention, and possess skill in oral and written communication.
This was the eighth time the vacancy announcement had been extended to fill this position.
See Exhibit 4, Vacancy Announcement for 5-96-6.
Angie Gobert applied and was qualified for this new position. Gobert was one of eight applicants who applied for this position and were found to be qualified.
3.
Joe Hennessey, supervisor of the Plans Unit, was responsible for interviewing, ranking and selecting the person to be promoted, using a process and criteria in accordance with MMS's merit selection plan. Hennessey was also Gobert's immediate supervisor at the time. Before Hennessey's selection could be considered final, and before the selectee could be informed, three supervisory officials had to approve the selection: first, Kent Stauffer, as Gobert's second level supervisor, needed to approve the selection; second, Donald Howard, the Regional Supervisor of Field Operations, needed to approve the selection; and lastly, the Regional Director Chris Oynes' approval was needed. Hennessey originally selected David Trocquet, who declined the position favor of accepting another one at the GS-13 level.
Because Trocquet had opted to accept the other promotion, his selection was never made official.
4.
On May 13, 1996, Hennessey selected Michael Tolbert for the new position. Tolbert's education, training and experience were nearly identical to that of Angie Gobert. Both Tolbert and Gobert had started with MMS in 1984, worked in the Plans Unit, and occupied the position of GS-12 petroleum engineer. Before the selection was made official, and prior to Tolbert being notified of his selection, Angie Gobert learned of his selection through her second-level supervisor, Kent Stauffer. Gobert, believing herself to be better qualified, on May 15, 1996, confronted Hennessey, asking what selection criteria had been used and why she had not been chosen. Hennessey met with Gobert and explained the selection criteria he used: (1) knowledge; (2) experience; (3) ability to act as a spokesperson; and (4) ability to work with the Leasing and Environment Section. After interviewing each qualified candidate, Hennessey stated that he had narrowed the list of qualified candidates to three, among whom Gobert was ranked third, behind Trocquet and Tolbert. Essentially, Hennessey said he had ranked Tolbert and Gobert equally, except that he found Tolbert better qualified in the areas of acting as a spokesperson and interacting with the Leasing and Environment Section.5.
On May 15, 1996, dissatisfied with Hennessey's explanation, Gobert sent an e-mail to Chris Oynes, the Regional Director, complaining about the selection process. In the e-mail, Gobert disclosed to Oynes that Hennessey had informed her of the ranking of candidates and of selection criteria. Oynes, concerned that the merit selection process might have been compromised, asked Howard to informally investigate. A panel consisting of Howard, Hennessey, and two MMS Personnel Department employees, Sue Scherr and Jean Rumney, met to review the selection process, and concluded that Hennessey had followed the merit promotion plan and procedures and that no improper criteria were used to rank the candidates. Concluding that the selection process was not compromised and had been fair, Oynes and Howard allowed the merit selection process to go forward and approved Hennessey's selection of Tolbert for the promotion.6.
On June 3, 1996, MMS's Personnel Department notified Tolbert that he had been selected for the promotion. On the same day, Tolbert told Gobert that he had been selected, at which time Gobert informed him about her previous conversations with Stauffer and Hennessey, as well as her e-mail to Oynes. Although he had initially indicated that he would accept the promotion, the next day Tolbert spoke with Hennessey and, after confirming what Gobert had told him about the selection criteria and the rankings, Tolbert advised that he now had reservations about accepting the job and was considering declining the promotion. Tolbert stated that after learning of the rankings and the criteria used, he agreed with Gobert that she was better qualified for the position, and that he felt better suited for another GS-13 position which had been discussed but not yet created. Although he expressed surprise that Tolbert was having reservations about whether to accept the promotion, Hennessey stated that he "would not have a problem with selecting Gobert if [Tolbert] declined." On June 7, 1996, Tolbert wrote a memo to Hennessey requesting additional time to decide whether to accept the position. Around the same time, Tolbert discussed the situation with Howard who, upon discovering that Tolbert might decline the promotion, told Tolbert that if he declined the position, it would need to be reconsidered, moved to another section, disposed of altogether, or restarted with a different selecting official and different selection criteria. Howard also told Tolbert that the hoped-for additional GS-13 position would not be created.
The vacancy announcement was set to expire on June 14, 1996. Tolbert did not receive a response to his request for additional time.
In fact, this additional GS-13 position was never created.
7.
Around June 11, 1996, Michael Joseph, another applicant for the position, learned that Gobert had been informed of her ranking. Joseph complained to the MMS Personnel Department and to Oynes that he believed the process had been unfair because Gobert had somehow learned of the rankings, and that she and Tolbert were conspiring to ensure Gobert would receive the promotion.8.
On June 14, 1996, at approximately 9:30 a.m., Tolbert formally declined the GS-13 promotion, largely because he believed Gobert to be better qualified than himself for this particular position. Tolbert had made a final decision to decline the position on the previous night, but had not disclosed his decision to anyone in advance. Sometime later on the same day, after learning that Tolbert had declined the position, Howard and Oynes agreed to allow the selection process to expire without filling the position, stating that the selection process had been compromised by Joseph's and Gobert's knowledge of the rankings before the selection was announced and because Gobert had "coerced" Tolbert to decline the position.
Both Tolbert and Gobert denied that any such "coercion" occurred. There was no evidence at trial of any actual coercion.
9.
MMS proffered a legitimate, nondiscriminatory reason not to promote Angie Gobert and to instead allow the advertised position to expire — that the selection process had been compromised. However, the trial evidence convinces the Court that this proffered reason was merely a pretext for the real reason — gender discrimination.10.
On August 12, 1996, Gobert filed a Complaint of Discrimination with the Department of the Interior, alleging that she was denied the position because of her race, color, religion, and sex.
There was no evidence at trial to support a claim of discrimination based on race, color, or religion.
11.
In May 1997, MMS issued Vacancy Announcement S-97-30, for a position entitled "Oil Spill Program Administrator." This was a new GS-13 position in the Office of Field Operations, Plans/Pipeline Section, Plans Unit. The announcement listed the duties of this position as serving as a technical authority providing professional advice on offshore oil spill prevention, containment, and clean up matters; providing expert advice and technical expertise on matters related to offshore oil spill prevention, containment, and cleanup strategies and equipment; providing advice and instruction during coordination and evaluation of regional and site-specific oil spill contingency plans; serving as a spokesperson for MMS on oil spill related matters; and advising and assisting the Coast Guard in developing Area Contingency Plans. Applicants were expected to have one year of specialized experience equivalent to the next lower grade; possess knowledge of oil spill prevention, containment, and cleanup equipment, as well as management principles which would be used to plan, respond, evaluate, and modify programs and procedures for responding to offshore spills; possess skill in negotiating techniques; and possess skill in oral and written communication.12.
Although Hennessey and Stauffer had written the earlier job announcement, Howard assigned himself the task of writing the job description for the new announcement. While he claimed to have worked on drafting this document over a period of several months, he acknowledged that he simply made minor revisions to the earlier announcement which had expired in June 1996. Howard admitted that the two positions, although having different titles, were "very similar."
13.
In actuality, the Oil Spill Administrator position was nothing more than a re-advertisement of the previous GS-13 Petroleum Engineer position without any significant differences in job duties. The duties described in each of the positions are nearly identical. Both positions focus on oil spill prevention, containment, and cleanup, as well as providing expert advice and instruction in these areas. Both positions also require the selectee to serve as a spokesperson on these matters. The only difference under the "duties" section of the announcements is that the Oil Spill Administrator will also be responsible for providing advice and assistance to the United States Coast Guard. However, even this duty can be seen as falling under the Petroleum Engineer's larger duty to develop and monitor regional oil spill contingency plans. Insofar as an applicant's previous education, training and experience were concerned, there were two major differences in the two announcements. The 1996 announcement for the GS-13 Petroleum Engineer position required a college degree and work experience as a petroleum engineer. The 1997 announcement eliminated these requirements, but added a requirement of "hands on" experience as an oil spill contractor.
14.
Gobert timely applied for this new position and was found qualified. However, the position was awarded to Rusty Wright who, although working previously in the oil field industry, held no college degree and was not a petroleum engineer. Wright's selection was based primarily upon his "hands on" experience as an oil spill contractor. However, the evidence at trial demonstrated that such experience was not actually required for the duties performed by the Oil Spill Administrator. Indeed, it was obvious to the Court that Howard had purposefully rewritten the 1997 vacancy announcement in such a way so as to allow Wright to compete for the position, while at the same time making it much less likely that Angie Gobert would be selected.
Under the selection criteria used for the newly created position, an applicant's previous "hands on" experience as an oil spill contractor would be "double weighted," so as to give extra credit for such experience. Howard knew that Gobert had no such experience. At the same time, the previous requirement that applicants be petroleum engineers with a college degree was deleted. Howard admitted this was done to allow someone like Wright to qualify for the position. It is also undisputed that Howard had previously been introduced to Wright, who was unemployed and looking for work, and set about to write the job description so that Wright would qualify.
CONCLUSIONS OF LAW 1.
The Court has jurisdiction over this matter pursuant to 42 U.S.C. § 2000e-5 2000e-16(c), and 28 U.S.C. § 1331 1343 (4).2.
When there is no direct evidence of intentional discrimination, as is often the case, a plaintiff must resort to proof of discrimination by circumstantial or indirect evidence. In considering such a claim of employment discrimination, the court employs the burden-shifting analysis articulated by the Supreme Court in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). In the context of the present case, plaintiff must initially establish a prima facie case of discrimination by showing that she was a member of a protected class, she applied for a promotion for which she was qualified, she was denied the promotion, and her employer continued to seek applicants for the position. St. Mary's Honor Ctr. v. Hicks, 509 U.S. 502, 506-07 (1993); Scales v. Slater, 181 F.3d 703, 709 (5th Cir. 1999) After the plaintiff has proven her prima facie case, "the burden of production shifts to the defendant to explain the circumstantial evidence of discrimination by demonstrating a legitimate, nondiscriminatory reason for the employment action." Scales, 181 F.3d at 709 (citing Texas Dep't of Community Affairs v. Burdine, 450 U.S. 248, 253-56 (1981)). If the defendant meets its burden by providing a legitimate, nondiscriminatory reason for the employment action, thereby rebutting plaintiff's prima facie case, the burden shifts back to the plaintiff to demonstrate that defendant's proffered reason was simply a pretext for the real reason — discrimination. Id. Even if successful in proving that the proffered reason was a pretext, the plaintiff has the ultimate burden of proving that the defendant intentionally discriminated against her, a burden which remains with her throughout the burden-shifting analysis. St. Mary's Honor Ctr., 509 U.S. at 506-07.
3.
Gobert proved a prima facie case of discrimination. To prove a prima facie case for a failure to promote claim, a plaintiff must demonstrate that "(1) she is a member of a protected class; (2) she sought and was qualified for an available employment position; (3) she was rejected for the position; and (4) the employer continued to seek applicants with the plaintiff's qualifications." Scales, 181 F.3d at 709. Gobert is a member of a protected class. She timely applied for the GS-13 position, and the uncontradicted evidence at trial was that she was well-qualified for the position of GS-13 Petroleum Engineer. It was also undisputed at trial that the vacancy announcement for this position was allowed to expire without being filled. Although Gobert was ranked only a single point below Tolbert, MMS elected not to fill the position rather than promote Gobert. Nevertheless, MMS later re-advertised the GS-13 position with a new job title, "Oil Spill Administrator," but with essentially the same duties.
Hennessey, the selecting official, testified that he ranked Trocquet, Tolbert, and Gobert practically equal, with scores of 100, 99, and 98 respectively, on a scale of 100, well above the next lower-ranked applicants. Hennessey acknowledged that there were "extremely small differences" between these top three candidates.
4.
MMS proffered a legitimate, nondiscriminatory reason for not selecting Gobert and instead allowing the vacancy announcement to expire. A defendant's burden in providing a legitimate, nondiscriminatory reason "is one of production, not persuasion; it `can involve no credibility assessment.'" Reeves, 120 S.Ct. at 2106 (quoting St. Mary's Honor Ctr., 509 U.S. at 509). At trial, Oynes and Howard testified that they decided to allow the position to lapse, without selecting Gobert, because they felt that the selection process had become compromised due to Gobert being informed of the rankings before the decision was announced. Once Gobert had been told, she confronted Hennessey about her ranking and inquired why she was not selected. Dissatisfied with Hennessey's response, Gobert then e-mailed Oynes complaining of the selection process. Oynes and Howard also testified that Tolbert's decision to decline the position in favor of Gobert, and Joseph's allegation that the process was unfair, contributed to the perception that the selection process was compromised. The Court finds that, if these proffered reasons are accepted as true, MMS has satisfied its burden of production that Gobert was not promoted for a legitimate, nondiscriminatory reason.
5.
However, at trial Gobert proved by a preponderance of the evidence that MMS's legitimate, nondiscriminatory reason was pretextual. There are several reasons why the Court concludes that MMS's proffered explanation for not promoting Angie Gobert was simply a pretext. The sequences of the events leading up to Howard and Oynes' decision to let the vacancy announcement expire demonstrate that this decision was made only after Michael Tolbert declined the position on June 14, 1996. MMS argues that the position was allowed to expire because the selection process had been compromised once Gobert learned of the rankings and confronted Hennessey, and then Oynes with an e-mail. However, Gobert discovered the rankings and confronted Hennessey on May 13, 1996, and sent Oynes the e-mail complaint on May 15, 1996. Oynes did have some concern about whether the merit selection process had been compromised at that time, and asked Howard to investigate. Howard convened a committee to investigate, and ultimately concluded that the process had been valid and in accordance with the merit selection plan. At that time, the selection process itself had essentially been completed, except for final approval and notification to the selectee, Tolbert. Apparently, Howard and Oynes were satisfied enough to allow the process to continue, so that the final approvals were given and on June 3, 1996, Tolbert was notified that he had been selected for the promotion. It wasn't until some time later, on June 14, 1996, that Howard decided to cancel the promotion after learning that Tolbert had declined the position.
At trial, Howard testified that it was June 13, 1996, when he actually decided to cancel the position. However, after reviewing the testimony and evidence at trial, the Court finds this testimony incredible, and that Howard decided to cancel the position on June 14, 1996, after he learned that Tolbert had declined the position. The Court found Tolbert's testimony at trial persuasive wherein he testified concerning the conversation he had with Howard in which Howard told him that the position would need to be reconsidered if he declined.
6.
The circumstances surrounding the creation of the Oil Spill Administrator position also support a finding of pretext. As previously stated, the Oil Spill Administrator position was a newly created position which essentially contained the same job description as the earlier GS-13 Petroleum Engineer position and possessed no significant differences in job duties. The 1996 announcement of the Petroleum Engineer GS-13 position constituted the eighth extension of this position. MMS failed to subsequently re-list the position, although after eight listings MMS had demonstrated that there was a demonstrated need for it. Equally telling is that instead of re-listing the position and starting the selection process anew, a logical solution to the purported problem of a compromised selection process, MMS allowed the position to expire, only to reinvent it with a new title but essentially the same job description, and to list qualifications which would allow candidates without Gobert's education and experience to outrank her.7.
Gobert proved by a preponderance of the evidence that she was the victim of intentional gender discrimination. "Although intermediate evidentiary burdens shift back and forth . . ., `[t]he ultimate burden of persuading the trier of fact that the defendant intentionally discriminated against the plaintiff remains at all times with the plaintiff.'" Reeves, 120 S.Ct. at 2106 (2000) (quoting Burdine, 450 U.S. at 253). In making the ultimate determination of discrimination, "the trier of fact may still consider the evidence establishing the plaintiff's prima facie case `and inferences properly drawn therefrom . . . on the issue of whether the defendant's explanation is pretextual.'"Id. (quoting Burdine, 450 U.S. at 255 n. 10). "Proof that the defendant's explanation is unworthy of credence is simply one form of circumstantial evidence that is probative of intentional discrimination, and it may be quite persuasive." Id. at 2108. To this end, a plaintiff must establish her case such that the trier of fact not only disbelieves the proffered reason, but also affirmatively believes that intentional discrimination did in fact occur. St. Mary's Honor Ctr., 509 U.S. at 511. The plaintiff may carry her burden with either direct or circumstantial evidence. Vance v. Union Planters Corp., 209 F.3d 438, 443 (5th Cir. 2000); Scott v. University of Miss., 148 F.3d 493, 504 (5th Cir. 1998) ("Because direct evidence is rare in discrimination cases, a plaintiff must ordinarily use circumstantial evidence to satisfy her burden of persuasion.").
8.
Gobert also introduced other, circumstantial or indirect evidence of gender discrimination. Specifically, Gobert testified that her immediate supervisor, Hennessey, seemed to treat her "differently" than the way he treated male engineers. Gobert testified, that for some unexplained reason, she was not given the same training opportunities as the male engineers in her section. She also testified that Hennessey had, on several occasions, made derogatory remarks which indicated a gender-based bias. For example, on one occasion Hennessey asked Gobert, "Why can't you be more like Warren and Mike [both male engineers]?" In the context of scheduling her interview for the vacant position, when Gobert requested to postpone the interview to the next day, Hennessey responded, "Women are too emotional." Gobert interpreted these remarks to mean, "Why am I not like the other guys?" Workplace remarks like those made by Hennessey may constitute sufficient evidence of discrimination if the remarks are (1) related to gender; (2) proximate in time to the employment action; (3) made by an individual with authority over the employment decision; and (4) related to the employment decision at issue. Vance, 209 F.3d at 442. Hennessey was not only Gobert's immediate supervisor but also the selecting official for the vacant position, and some of his remarks were made in connection with the interview and selection process. Accordingly, the Court concludes that this evidence, considered together with Plaintiff's proof of her prima facie case, and the pretextual nature of Defendant's proffered non-discriminatory reason to not promote Gobert, supports a finding of intentional discrimination.
Hennessey had never supervised a female engineer other than Angie Gobert.
9.
In Reeves, the Supreme Court held that "it is permissible for the trier of fact to infer the ultimate fact of discrimination from the falsity of the employer's explanation." 120 S.Ct. at 2108. of course, "this is not to say that such a showing by the plaintiff will always be adequate to sustain a [fact finder's] finding of liability." 120 S.Ct. at 2109. For example, an inference of discrimination would not be warranted "if the record conclusively revealed some other, nondiscriminatory reason for the employer's decision, or if the plaintiff created only a weak issue of fact as to whether the employer's reason was untrue and there was abundant and uncontroverted independent evidence that no discrimination had occurred." Id. In the absence of such other evidence, however, an inference of discrimination may be made, "particularly if disbelief is accompanied by a suspicion of mendacity." 120 S. Ct. at 2108. As the Court stated in Reeves:
In appropriate circumstances, the trier of fact can reasonably infer from the falsity of the explanation that the employer is dissembling to cover up a discriminatory purpose. Such an inference is consistent with the general principle of evidence law that the fact finder is entitled to consider a party's dishonesty about a material fact as "affirmative evidence of guilt." Moreover, once the employer's justification has been eliminated, discrimination may well be the most likely alternative explanation, especially since the employer is in the best position to put forth the actual reason for its decision.Reeves, 120 S.Ct. at 2108-09 (citations omitted).
Thus, "a plaintiff's prima facie case, combined with sufficient evidence to find the employer's asserted justification is false, may permit the trier of fact to conclude that the employer unlawfully discriminated." Id. at 2109.
10.
Considering all the evidence, the Court concludes that Angie Gobert proved a prima facie or circumstantial case of gender discrimination. In addition to her prima facie case, Gobert introduced direct evidence of discrimination in the form of certain remarks made by Hennessey, who was not only her immediate supervisor but also the selecting official for this position. The Court also concludes that MMS's asserted nondiscriminatory reason was false. There was no evidence of any other, nondiscriminatory reason for her employer's failure to promote Gobert once Tolbert declined the position. Nor was there "abundant and uncontroverted independent evidence that no discrimination had occurred."Reeves, 120 S.Ct. at 2109. Accordingly, the Court infers from all of the evidence in this case that MMS unlawfully discriminated against Angie Gobert on account of her gender when she was denied the promotion to GS-13 Petroleum Engineer.
11.
At this time, the Court will pretermit ruling as to appropriate relief pending consideration of memoranda to be filed by the parties.
During trial, the parties stipulated to $21,564.62 as the appropriate quantum for back pay should Gobert prevail. The Court will award to Plaintiff this back pay plus such other damages as may be appropriate in light of the Conclusions of Fact and Findings of Law.