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FRIEDMAN v. BOLGER

December 17, 1984

NETTIE FRIEDMAN, Plaintiff, v WILLIAM F. BOLGER, Postmaster General, Defendant.


The opinion of the court was delivered by: POLLACK

FINDINGS AND OPINION

MILTON POLLACK, Senion United States District Judge

 These are two actions under the Federal Age Discrimination in Employment Act, (ADEA) 29 U.S.C. § 633(a). Plaintiff Nettie Friedman, an employee of the United States Postal Service, alleges that she was discriminatorily denied promotions on the basis of her age or in retaliation for successive EEO complaints that she has brought. She seeks declaratory judgments that defendant's alleged unlawful employment practices have deprived her of equal employment opportunities, injunctive relief against future discrimination, compensatory damages, and attorney's fees.

 Plaintiff initiated the actions pro se but at trial was represented by an attorney. At the Court's urging, plaintiff sought the assistance of a trial lawyer experienced in Title VII matters. At the inception of the trial, the attorney stated that irreconcilable differences had developed regarding the conduct of the case, and asked to be relieved as Mrs. Friedman's attorney. The Court invited plaintiff to reconsider; she agreed that she should be represented by the attorney, and he remained.

 The two actions were tried together to the Court on November 19 and 20, 1984. To expedite the trial and to have a clear picture of the employment situation, for each of the contested positions, the defendant set forth the available vacancy, the manner in which it was filled, and the reasons for the selection that was made. Plaintiff then took the stand and gave her version of her complaint. She also called upon employees of the defendant to testify. This was followed by defendant's rebuttal and, in some instances, further testimony from the plaintiff.At the close of the case, plaintiff's attorney requested that he not be required to give a summation and requested instead an opportunity, which was granted, to prepare a post-trial brief. Later, plaintiff's counsel waived submission of that brief.

 Mrs. Friedman's qualifications as a senior secretary are not in dispute. She is 68 years old and has been employed by the Postal Service for approximately six years. Over the last 30 years, she has held a considerable number of secretarial positions in the private and public sectors, including some involving legal matters or work with attorneys. Plaintiff's legal experience was evident in the complaints that she prepared pro se; she also examined witnesses in a creditable fashion at the administrative hearings. All of plaintiff's applications for vacancies were acknowledged by defendant with approval of her general secretarial ability.

 These are troubling cases. An apparently well qualified secretarial employee, in the protected age group, has been seeking promotion and has failed to succeed as the selectee in several job vacancies posted by her employer. She alleges that she has not been selected for the vacancies in question because she is being discriminated against, either because of her age or in reprisal for successive (but fruitless) EEO complaints. However, the evidence fails to sbustantiate any of her complaints and specifically negates their validity.

 For each job opportunity in question, the Court has carefully considered why the complainant was passed over, with or without an interview, and whether the multiple unsuccessful applications evince an unlawful pattern as to her or others. In each instance, there was no credible evidence of discriminatory conduct, purpose, or intent on the part of those who selected applicants for interview or made the ultimate determinations. Mrs. Friedman received dispassionate and fair consideration. The evidence demonstrates that she did not receive the promotions in question because, in each instance, another applicant was either more experienced in the particular skills required, or objectively better suited for the vacancy.

 Plaintiff's complaints relate to the following positions:

 1. Secretary B, Grade 11, Design and Construction;

 2. EAS 15, Realty Transaction Technician, New England Freebo;

 3. EAS 15, Contract Specialist;

 4. EAS 10, Secretary, Human Resources;

 5. EAS 11, Employee Relations ...


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