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VERDELL v. WILSON

March 1, 1985

GLORIA VERDELL, GLADSTONE S. LAWRENCE, BETTYE CASSELBERRY VANCE and FRED FAYERWEATHER, Plaintiffs, against REAR ADMIRAL DONALD E. WILSON, as Commanding Officer, Navy Resale System and Supply Office, and JOHN LAYMAN, as Secretary of the Navy, Defendants


The opinion of the court was delivered by: NEAHER

NEAHER, District Judge.

MEMORANDUM OF DECISION AND ORDER

 This is a consolidated action under Title VII of the Civil Rights Act of 1964, as amended by the Equal Employment Opportunity Act of 1972, 42 U.S.C. §§ 2000e, et seq., brought by four black employees of a federal government agency to redress claimed discrimination in employment based upon race. *fn1" The Court has jurisdiction over the claims in issue and plaintiffs have exhausted their administrative remedies pursuant to 42 U.S.C. § 2000e-16(c). A trial de novo of plaintiffs' respective claims has been conducted and the following findings of fact and conclusions of law constitute the decision of the Court. Rule 52(a), Fed. R. Civ. P.

 FINDINGS OF FACT

 Plaintiffs Gloria Verdell, Gladstone S. Lawrence, Bettye Casselberry Vance and Fred Fayerweather are black citizens who were at all relevant times employed by the Navy Resale System and Supply Office (hereinafter "NAVRESSO"), a federal agency within the Department of the Navy. The individual defendants are, respectively, Rear Admiral Donald E. Wilson, the commanding officer of NAVRESSO, and John Lehman, Secretary of the Department of the Navy. Since each plaintiff was employed in a separate activity of NAVRESSO, their respective claims will be considered seriatim.

 NAVRESSO, now located at Fort Wadsworth on Staten Island, New York, provides overall supervision of the worldwide operations of the Navy's commissary stores, exchanges, and ships stores, and of the Military Sealift Command exchanges. NAVRESSO's primary functions included providing supervision, technical guidance and administrative assistance to these operations. In fiscal year 1980 it employed more than 30,000 persons worldwide and had sales in excess of $2 billion. The "head office" at Fort Wadsworth is staffed by approximately 800 employees, most of whom, including plaintiffs, are civilians.

 Verdell's Claim

 Plaintiff Gloria Verdell began her employment in the Retail Merchandising Division (RMD) of NAVRESSO in August 1974 as a buyer of women's clothing. She came to that position with 10 years of experience in the retailing field following a year of study at the University of Michigan and two years at the Chamberlain School of Retailing. Among her previous positions, she was a market representative later promoted to assistant buyer at Frederick Atkins (1964-70), a maternity buyer at Alexander's (1970-72), and a market representative (buyer) at May's Merchandising Corporation (1972-74).

 Verdell was employed initially at Management Grade 10 under the then applicable NAVRESSO grading system. After a system-wide salary conversion in 1974 to the Universal Annual" (UA) schedule (conforming to the "GS" schedule used elsewhere in the government), she became a Grade UA-11, where she remained until her resignation on August 6, 1982. Her claim of racial discrimination arises out of the following circumstances.

 In May 1975, a vacancy was posted for the position of senior buyer of children's wear in RMD because of the lateral transfer of the incumbent. The position was graded at UA-12 and represented a promotion in salary and managerial responsibility. The only listed qualification for the position was "8-10 years of diversified experience in retailing." Verdell was the only person to submit an application. She was later interviewed by Henry Liebowitz, the branch manager responsible for the children's wear section of RMD, who told her there were additional qualifications, namely, that the person to be selected for her position would be someone with prior children's wear buying experience and "a thorough knowledge of the [NAVRESSO] system." Liebowitz also interviewed three white Grade 11 buyers for the for the position: Inez Grikitis, Claire Messing and James LoNano, none of whom had submitted applications. Grikitis, who had been a children's wear buyer for some 15 years and a NAVRESSO employee for 10 years, and had worked under the supervision of Liebowitz, was eventually selected for the senior buyer position. In addition to Liebowitz's personal interview with each of the buyers named, he had access to their Industrial Relations Department (IRD) employee review profiles. These reflected that only Grikitis was considered "promotable", in contrast to the "not promotable" ratings given Verdell, Messing and LoNano by the senior buyers who were their respective supervisors.

 Verdell essentially contends that the selection process for the job for which she alone had applied wa a sham designed to ensure that the vacancy would be filled by Liebowitz's preordained candidate Grikitis, a white woman, regardless of qualifications. Although racial discrimination may assume many disguises, the preponderance of the credible evidence in this case does not support a finding that Verdell was denied the sought-after promotion solely because of her race.

 Preliminarily it should be noted that the posting of notices of job vacancies by the IRD did not require interested employees to make a formal application in order to be considered, as Verdell had mistakenly thought. Obviously, those already employed as buyers in the children's wear unit where the vacancy occurred were fully aware of the job opportunity and were likely candidates for consideration, as Liebowitz testified. Thus, the Court finds no support for the contention that the interviewing procedure which eventually resulted in the selection of Grikitis was a pretext to disguise race discrimination and eliminate Verdell, an equally qualified black candidate.

 The evidence at trial clearly demonstrated that Grikitis possessed far superior qualifications compared to Verdell. As of the time of her promotion to senior buyer Grikitis had been a children's wear buyer at NAVRESSO for over nine years. Prior to that she had twelve years of experience in the retailing of children's wear for some six years. Previously she had been a department manager and assistant buyer at such well-known stores as Bloomingdale's, Lane's, and Kirby and Block. In contrast to Grikitis' 15 years overall experience as a full-fledged buyer of children's wear, Verdell had no experience in that specialty, her total buying experience of some four years having been limited to the maternity and budget dress areas.

 In the important areas of NAVRESSO procedures and operations, Verdell's experience extended over a brief ten months in contrast to Grikitis' nine years. Verdell's single work performance review in 1975, as summarized in Leibowitz's testimony, indicated:

 
"On Mrs. Verdell's work performance review, it said 'Mrs. Verdell must still further her knowledge of procedures in the areas of procurement', which is buying, 'official correspondence', which is our only way of communicating with exchanges and vendors, 'listings', which is the basis of our entire operation, 'reports', which is required to keep current, and it has 'etcetera'."

 Grikitis, on the other hand, as of June 1974 -- prior to Verdell's employment -- had already attained a "very good" rating, the highest a buyer could receive for overall performance. At that time also, she was listed as being "promotable" to the position of senior buyer. In February 1975, she continued her "very good" rating and her record noted that she was promotable to the position of merchandise manager within 18 months, a position even higher than that of senior buyer.

 Finally, there is no merit in Verdell's contention that the only requirement for the senior buyer job was "8-10 years experience in retailing." The job description for senior buyer of children's wear included the following: "Procure (i.e., buy) and is responsible for departmental procurement"; "organize and control departmental buying and merchandise plans [for the children's wear department]"; "responsible for management review of the retail operations of Navy Exchanges pertaining to categories [within the children's wear department]"; "prepare reports on current operations, market trends, pricing"; and "review monthly operations of department." Obviously, these responsibilities which pertained to the special needs of Navy Exchanges scattered all over the globe could best be discharged by a person having the special knowledge and experience which Grikitis had gained over a nine-year period working for NAVRESSO.

 In a case such as this, "[t]he plaintiff retains the burden of persuasion . . . to demonstrate that the proffered reason was not the true reason for the employment decision" not to promote her. Texas Department of Community Affairs v. Burdine, 450 U.S. 248, 256, 67 L. Ed. 2d 207, 101 S. Ct. 1089 (1981). Verdell has failed to satisfy that burden since the preponderance of the credible evidence demonstrates that the determining factor was not Verdell's race but the superior qualifications of a competing candidate.

 Accordingly, defendants are entitled to judgment dismissing Verdell's claim.

 Lawrence's Claim

 Lawrence, age 59 and a naturalized citizen, has been employed by NAVRESSO since 1956 when he came to New York from his native Panama, and continues in its employ. His claim in this action is that the higher grade and salary he should have received when he was promoted to Branch Manager in 1974 was denied him because he was black, and that his loss of that title in 1976 wa also the result of racial discrimination.

 Possessing skills in art and graphics, Lawrence in 1968 became the Supervisor of Graphic Arts, a subdivision of NAVRESSO's Management Operations Section (MO), which embraced a number of support units. In 1974 MO was reorganized, resulting in the formation of a Graphic Arts Branch within the Administrative Services Division of MO. Lawrence was then promoted to the position of Branch Manager. In 1976, however, a further reorganization of NAVRESSO occurred which resulted in new management groupings and changes in supervisory titles. The subdivisions of the former MO were no longer "branches" but "sections", resulting in Lawrence's title being changed from Branch Manager to Supervisor of three artists then comprising his unit.

 Since the completion of trial the issues involved in Lawrence's discrimination claim have been narrowed by virtue of a settlement agreement between the parties. Pursuant to that agreement, dated 9 December 1983, Lawrence's pay scale was retroactively increased as of December 1, 1976 to UA Grate 11 (Step 10) and he received back pay accordingly. That action by NAVRESSO was prompted by a decision of the Equal Employment Opportunity Commission (EEOC) in a separate proceeding brought in 1982 by three female artists who were supervised by Lawrence. The EEOC agreed with their contention that under the Equal Pay Act they had been paid at a lower scale than their male co-worker who had been graded to UA-9. NAVRESSO accordingly upgraded the female workers to UA-9 retroactively to September 1, 1976, which in turn required the UA-11 grade increase granted Lawrence pursuant to Civil Service Commission salary classification principles.

 The next question is whether the following clause in the December 1983 agreement puts an end to all of Lawrence's discrimination claims in this action:

 
"This agreement constitutes the full agreement in settlement of the attached EEO complaint of Gladstone S. Lawrence. There are no other agreements between the parties, either expressed or implied, oral or written. Gladstone S. Lawrence agrees to accept the action by NAVRESSO set forth above as full satisfaction settlement of any and all claims allegedly arising from the allegations of discrimination contained in the attached EEO complaint against the United States, the Department of the Navy, NAVRESSO, its employees, its representatives, and Arthur A. La Valle and James W. Simmons. The fact that this settlement agreement has been entered into by NAVRESSO does not constitute an admission by NAVRESSO of the truth of any matter set forth in the attached EEO complaint of Gladstone S. Lawrence, nor does it constitute any admission of liability, fault or error on the part of the United States, the Department of the Navy, NAVRESSO, its employees, its ...

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