In judging credibility I have to say that I think the Postal
Service was looking to promote a woman. I find they were. I
further find from the evidence, and am compelled to the
conclusion, that the promotion decision came down to a choice
between the plaintiff and Jordan.
I frankly discount the testimony concerning the conversation
between the plaintiff and the Postmaster about the Daily
Illini newspaper interview. I think his remark was innocuous
and trivial. He says he doesn't remember whether he made it or
not. This is understandable, because "now everyone knows your
age" was probably said in a facetious or jocular manner.
The court concludes that the plaintiff has sustained her
burden of proving that age was a motivating factor in her
rejection as a candidate for promotion; that it is more
probably true than not true that age was the motivating
factor; that the reasons advanced by the defendant for failing
to select her are pretext in the legal sense because age was
the motivating and substantial factor in the consideration of
the postal management.
Mastie v. Great Lakes Steel Corp., 424 F. Supp. 1299
(E.D.Mich. 1976) involved a claim under the parallel statute,
29 U.S.C. § 631, in a private employment relationship. In that
case the court discusses the burden of proof upon the plaintiff
and holds that the plaintiff must show by the preponderance of
evidence that age was the motivating factor in failing to
appoint. Unlike Mastie, where the plaintiff was passed over in
favor of better qualified applicants, the evidence presented in
this record shows that the plaintiff had superior credentials
and qualifications for the supervisory position to which a
younger person was appointed.
The plaintiff is entitled to a mandatory order that she be
promoted to the first LSM supervisory position or comparable
supervisory position which becomes vacant in the Champaign
Post Office. In addition, the plaintiff is entitled to recover
as damages the difference between the compensation she would
have received as LSM Supervisor and the compensation that she
received in the clerk's position in which she was employed.
The award runs from May 16, 1977, the date of her
nonselection, to such date as she is given a comparable
supervisory position. Jones v. Cleland, 466 F. Supp. 34
(N.D.Ala. 1978). Further, the plaintiff is to be compensated at
supervisory rates for all work performed (including base
salary, night differential, and overtime) from January 23, 1980
until she is advanced to supervisor.
The purpose of a back pay award is to make the victim of
discrimination whole. Albemarle Paper Co. v. Moody,
422 U.S. 405, 95 S.Ct. 2362, 45 L.Ed.2d 280 (1975). To accomplish that
purpose in this case, the plaintiff must be compensated as a
supervisor from the date of her nonselection. Obviously, the
award must include the differential between the LSM
supervisor's base rate of pay plus night differential and the
base rate of pay plus night differential for the clerk's
position which she received. In addition, it has been
established that LSM supervisors worked an average of 101.25
hours of overtime during the award period. The evidence further
shows that the plaintiff worked approximately 341 hours of
overtime as a clerk during the same period. Therefore, the
plaintiff, to be made truly whole, must receive the
differential between the overtime pay for supervisors and
clerks for the average 101.25 hours worked by LSM supervisors.
As for the some 240 remaining hours of overtime compensation
received by the plaintiff, the court declines to deduct it
from the back pay award; to do so would punish the plaintiff.
By way of analogy, the courts have recognized that earnings
derived from moonlighting should not be subtracted from a
plaintiff's back pay award if the plaintiff could hold the
supplemental job and the desired full time job simultaneously
and there was reason to believe it would be done. Bing v.
Roadway Express, Inc., 485 F.2d 441 (5th Cir. 1973), Smith v.
Concordia Parish School Board, 387 F. Supp. 887 (W.D.La. 1975).
case, the plaintiff's additional earnings were derived from
her regular job rather than from a second job. They came in
the form of overtime hours. But the policy remains the same.
The plaintiff should not be punished for additional earnings
if she could earn them while holding the desired position and
if there is reason to believe she would do so. Counsel for the
defendant argues that the plaintiff could not work overtime
as a clerk after she was promoted to supervisor and that,
therefore, the moonlighting analogy does not apply. Counsel's
argument loses sight of the broad policy behind such awards.
The plaintiff has demonstrated that she worked 341 hours of
overtime. The supervisor's job required only 101 hours of
overtime. She had some 240 hours of additional earnings which
she would have been free to earn albeit at another job, while
still holding the position of supervisor. Thus, the failure to
subtract such earnings from a back pay award does not
constitute a windfall to the plaintiff. To the contrary, in
cases such as this, where the plaintiff worked overtime hours
in excess of those which would have been required in the
desired position under the same employer, to deduct those
earnings from her back pay award would be to punish the
plaintiff for her initiative and to doubly benefit the employer
who discriminated against her by allowing the employer both to
benefit from her overtime efforts and to subtract such earnings
from the back pay award.
Interest is also generally awardable under the "make whole"
policy of the ADEA. Jones v. Cleland, supra. Section 626(b) of
the ADEA provides that back pay awards shall be enforced as
provided for under § 216 of the Fair Labor Standards Act,
29 U.S.C. § 201 et seq. (1965). Under that act, interest is
awardable to help effect "a restoration of the situation, as
nearly as possible, to that which would have obtained but for
the illegal discrimination." Phelps Dodge Corp. v. NLRB,
313 U.S. 177, 61 S.Ct. 845, 85 L.Ed. 1271 (1941), NLRB v. American
Compress Warehouse, 374 F.2d 573 (5th Cir. 1967).
29 U.S.C. § 633a(f), however, provides:
(f) Any personnel action of any department,
agency, or other entity referred to in subsection
(a) of this section shall not be subject to, or
affected by, any provision of this chapter, other
than the provisions of section 631(b) of this
title and the provisions of this section.
Admittedly, the Postal Service comes within the
proscriptions of § 633a(f). 29 U.S.C. § 633a(a) (Supp. 1979).
This, however, does not change the court's conclusion. By the
plain language of § 633a(f), the Postal Service remains subject
to § 633a(c), which provides:
(c) Any person aggrieved may bring a civil action
in any Federal district court of competent
jurisdiction for such legal or equitable relief as
will effectuate the purpose of this chapter.
As discussed above, Congress and the courts have already
determined that an award of interest "effectuates the
purposes" of the ADEA.