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February 3, 1992

MILES V. WILLIAMS, Plaintiff, against LIEUTENANT GENERAL CHARLES McCAUSLAND, in his official capacity as Director, Defense Logistics Agency, Defendant.


The opinion of the court was delivered by: ROBERT W. SWEET

Sweet, D.J.

 Plaintiff Miles V. Williams ("Williams") has alleged discrimination by defendant Lieutenant General Charles McCausland ("McCausland") in violation of Title VII of the Civil Rights Act of 1964 ("Title VII"), 42 U.S.C. § 2000e-16, arising out of the promotion of another employee to a position sought by Williams. Upon the trial to the Court and all prior proceedings, the facts are found and conclusions reached as set forth below in accordance with which judgment will be entered dismissing the complaint.

 There is little factual dispute about what happened to Williams, a black man, in the course of his employment with the Defense Logistic Agency ("DLA") or the process by which another employee, Edward Flynn ("Flynn"), a white man, was selected for a GS-12 position as Contract Price/Cost Analyst ("CP/C Analyst"). The resolution of this action turns upon the superiority of Williams' qualifications measured against his burden of proof as it oscillates in the intricate fashion required of discrimination cases presenting the sort of fact pattern found below.

 Prior Proceedings

 Williams filed this action pro se on June 6, 1989. The complaint alleged that, because of his race, Williams was denied a promotion to a GS-12 CP/C Analyst position (the "GS-12 promotion") at the Defense Contract Administration Services Residency for the Loral Electronics System Corporation ("Loral Residency"). By way of relief, Williams sought retroactive appointment to that or a comparable position, back pay, and attorneys' fees and costs.

 The distinguished firm of Cravath, Swaine & Moore undertook to represent Williams pro bono, thus greatly assisting Williams, the Court, and the administration of civil justice in this difficult area of the law. Discovery was had, and the action was tried from December 30, 1991, to January 3, 1991. Final submissions were received on January 10, 1992.

 Findings of Fact

 The DLA is an agency of the Department of Defense, responsible for providing contracting support, contract administration, and payment and logistics support for the military services. The Defense Contract Administration Services Region-New York ("DCASR-NY") was formerly a regional office of the DLA, with responsibility for providing contract support to the military services in the tri-state region. Defense Contract Administrative Management Areas ("DCASMA") were sub-offices of DCASR-NY located throughout the region. In 1990, DCASR-NY was reorganized into the Defense Contract Management Region ("DCMR").

 McCausland is an officer of the United States Air Force. At all relevant times, McCausland was the head of the DLA. As such, he is sued only in his official capacity.

 Lt. Commander John Giglio ("Giglio") is an officer of the United States Navy trained to perform the duties of a Supply Officer in his service. At all relevant times, Giglio was the officer in charge of the Loral Residency.

 Flynn is currently a GS-12 Cost Monitor at the Loral Residency. He began his employment with the DLA in October 1986 as a GS-11 CP/C Analyst at the DCASMA-Garden City office. Flynn and Williams worked together at DCASMA-Garden City from October 1986 until May 1988. He was the successful applicant for the GS-12 promotion that Williams sought.

 The GS-12 Vacancy at the Loral Residency

 In August 1987, DLA established a residency at Loral Electronics Systems Corporation, a large defense contractor located in Yonkers, New York. The purpose of the residency was to provide DLA with a presence at Loral's facilities, enhancing DLA's ability to monitor Loral's performance of its Department of Defense contracts.

 Giglio was appointed as the officer in charge of the Loral Residence. Prior to August 1987, Giglio was the officer in charge of a DLA residency at the Wedtech Corporation in Bronx, New York. That residency was closed in the summer of 1987 when Wedtech sought the protection of the Bankruptcy Court. Giglio was responsible for assembling a staff at the Loral Residency, which included one GS-11 and one GS-12 CP/C Analyst.

 The two CP/C Analyst positions are largely the same, except that a GS-12 analyst is more senior and receives a higher salary than a GS-11 analyst. CP/C Analysts at both levels evaluate contract proposals by defense contractors for completeness and reasonableness and perform those functions in conjunction with a pricing team consisting of auditors, engineers, and industrial and other technical specialists. The CP/C Analyst leads the pricing team and prepares a detailed report regarding the proposed contract, including a recommended negotiating position for the Government. The CP/C Analyst's responsibilities also include conducting financial analyses of Loral's contract proposals, evaluating Loral's technical and financial ability to fully perform defense contracts, monitoring Loral's costs relating to such contracts, managing progress payments on such contracts, and performing pre-award and post-award surveillance audits of Loral's defense contracts.

 In May 1988, Flynn transferred into the Loral Residency to fill the vacant GS-11 CP/C Analyst position. The GS-12 CP/C Analyst position at Loral was vacant, and Flynn performed some of the responsibilities of both the GS-11 and GS-12 CP/C Analyst positions.

 Job Opportunity Announcement No. 129-88 and the Filling of the Vacancy

 On August 11, 1988, the Office of Civilian Personnel of DCASR-NY posted Job Opportunity Announcement No. 129-88 (the "JOA"), announcing a vacancy for a GS-12 CP/C Analyst position at the Directorate of Contract Management Division of DCASR-NY. The closing date for applications was stated to be September 12, 1988.

 The JOA included a listing of required qualifications, including three years of general and specialized experience relating to contract analysis and security eligibility for a noncritical sensitive position. On September 9, 1988, Williams submitted an application for the GS-12 position pursuant to the JOA and an accompanying Merit Promotion Program Supplemental Qualifications Statement ("Williams' application"). Williams' application included: (1) written answers to each of the five requirements listed in JOA; (2) Williams' two most recent annual performance evaluations; (3) a transcript from the Monroe Business Institute and certificates evidencing Williams' successful completion of various governmental in-house training courses relating to CP/C Analysis; and (4) several award certificates.

 The JOA identified different criteria for ranking the candidates, as well as the weight to be assigned to each factor. These criteria included: (1) the applicant's knowledge, skills and abilities in five specific areas (sixty percent); (2) performance evaluations (twenty-five percent); (3) related education, training and self-development courses (ten percent); and (4) related awards (five percent). These criteria were to be used to rank the applicants if more than five persons responded to the JOA. The position was to be awarded by the DLA on a competitive basis and to the most qualified candidate.

 On September 12, 1988, the Office of Civilian Personnel amended the JOA to advertise all vacant GS-12 CP/C Analyst positions throughout the region. The location was the ...

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