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July 17, 1991


The opinion of the court was delivered by: Stewart, District Judge:


Plaintiff Odell B. Day ("Mrs. Day") brings this employment discrimination case under Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq. (1988), and the Age Discrimination in Employment Act of 1967 ("ADEA"), 29 U.S.C. § 621-34 (1985), against Edward J. Derwinski, Secretary of Veterans Affairs.*fn1 The plaintiff, a black woman, was sixty-two years old when she was reassigned from her job as a medical transcriber in the Radiation Therapy Department of the Veterans Administration Bronx Medical Center ("the hospital"). She alleges the reassignment was motivated by race and age discrimination. She seeks damages for lost wages in the amount of $70,000., an undetermined amount in damages for lost reputation, attorneys' fees totalling approximately $65,000., and a written apology.

A non-jury trial of three days was held. The following constitutes our findings of fact and conclusions of law as mandated by Rule 52 of the Federal Rules of Civil Procedure.


Mrs. Day began working at the Bronx Veterans Administration Medical Center on January 20, 1944. In 1954 she started working in the Radiation Therapy Service. Her job title was Medical Clerk/Typing, Grade 5, Step 10, at a salary of $18,070. Deft's Exh. N. As a medical transcriber Mrs. Day typed the doctors' dictated notes from audio tapes. During her employment at Radiation Therapy Mrs. Day had achieved a certain status and received certain privileges, including a private office with the title "Research Coordinator" on her door. Tr. 107. As research coordinator she coordinated everything between the patient and the doctors. Tr. 11. It is undisputed that Mrs. Day's performance was not only satisfactory but was rated "excellent, outstanding, or far exceeded" at various times in her employment, including the period just prior to her reassignment. Tr. 14.

Mrs. Day's supervisor was Dr. Bernard Roswit, the Chief of Radiation Therapy, until his retirement in 1983. Dr. Roswit had been an active member of the cooperative cancer studies that the VA had conducted, including preparing papers and talks.*fn2 Tr. 162. After Roswit's retirement Dr. Hee Kyung Song became the Acting

Chief of Radiation Therapy and plaintiff's supervisor.

On August 31, 1984 Mrs. Day received a memorandum signed by Dr. Julius Wolf, the hospital's Chief of Staff, informing her that she was being reassigned to Nuclear Medicine Service effective September 16, 1984. The new position was the same job title, at the same grade and step and same salary. Tr. 173, Deft's Exh. N. At some time prior to the reassignment notice, Dr. Song had informed Dr. Wolf that a medical clerk was no longer needed in Radiation Therapy because of a decreasing workload. Tr. 161. Dr. Song wrote a memorandum under Dr. Wolf's signature to the Position Management Committee requesting that the position of medical clerk be abolished. Tr. 162-63. Dr. Wolf approved the request and forwarded it to the Position Management Committee. Tr. 163. At a meeting on August 17, 1984, the Position Management Committee granted the request, recommending to the director of the hospital that the position be abolished, and that Medical Administration Service absorb the transcription workload. Tr. 164, Pltf's Exh. 11. The director of the hospital approved the recommendation. Id. In consultation with Dr. Wolf, the personnel office made arrangements for Mrs. Day's reassignment to a new position in the Nuclear Medicine Service. Tr. 169-70.

Upon receiving the reassignment notice, Mrs. Day immediately went to see Dr. Wolf for an explanation for her sudden transfer. Tr. 17, 171. Mrs. Day testified that she was extremely upset, "hurt" and "humiliated" at not being notified in advance of her reassignment, as if she had "done something untoward."*fn3 Tr. 21, 54, 69. According to Mrs. Day, Dr. Wolf said he knew nothing, except that "someone" gave him a memo and he signed it. Tr. 17. Dr. Wolf testified that he indicated to Mrs. Day that he felt the position was not needed in Radiation Therapy and that there was a vacancy to be filled in Nuclear Medicine. Tr. 172. He suggested that Mrs. Day could either take this job or a lesser job. Tr. 17. Dr. Wolf then suggested that she speak to someone in personnel. Id.

Mrs. Day spoke to Mr. Thorne in personnel, who informed her that the memorandum requesting the abolition of her position originated from Dr. Song, the Acting Chief of Radiation Therapy. Tr. 17-18. Mrs. Day then approached Dr. Song, who initially denied any knowledge of the transfer and reassignment. Tr. 18. Dr. Song then suggested that "maybe it was that memo you wrote on Ms. May."*fn4 Id.

Mrs. Day also sought assistance from the union. Tr. 21-22. Unsatisfied, she then sought assistance from the Equal Employment Opportunity ("EEO") office of the hospital. Id. An EEO counselor, Mr. Bill Dawson, was assigned to conduct "informal counseling" in response to Mrs. Day's complaint. Dawson interviewed Dr. Wolf and Dr. Song and wrote a report dated October 26, 1984. In his interview of Dr. Song on September 14, 1984, Dawson reported that Dr. Song cited several examples of problems that she had experienced with the plaintiff. Dr. Song said Mrs. Day refused to help out with the reception clerk's duties or to fill in for the secretary when she was absent. According to Dawson, Mrs. Day denied that she was ever asked to perform these tasks.

Further, Dr. Song said Mrs. Day "walked out of a meeting" with Dr. Song and Ms. May when the three were discussing the confrontation between Mrs. Day and Ms. May in July. Pltf's Exh. 7. According to Dawson's report, Mrs. Day admitted she "excuse[d] herself from this meeting," because she felt she was now "the one being accused," and that Ms. May had been "informed" by Dr. Song "how to respond to the situation." Id. Dawson's report supports Mrs. Day's testimony that Dr. Song referred to the confrontation with Ms. May as a reason for Mrs. Day's reassignment.*fn5 Id.

Sixty percent of plaintiff's work in Radiation Therapy was medical transcription, with the remaining time spent working directly with patients and their kin. Tr. 12, 33-34. Estimates of the amount of time that Mrs. Day spent doing medical transcription ranged from less than one hour a day to two and half to three hours a day. Tr. 129, Pltf's Exh. 11, Deft's Exh. G. Mrs. Day testified that she spent "most" of her time on transcription, approximately sixty percent. Tr. 33-34, 44. Calculated on an eight-hour work day, that would be four and a half hours a day.

The evidence showed that the number of new cases in Radiation Therapy had been declining gradually since 1980. Deft's Exh. W. There was no documentation presented regarding the number of cases carried over from previous years, nor any ...

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