The opinion of the court was delivered by: James M. Moody United States District Judge
FINDINGS OF FACT AND CONCLUSIONS OF LAW
This case was tried to the Court on June 18 - 20, 2007. From a review of the evidence, which included exhibits, testimony at trial and by deposition, the Court makes the following findings of fact and conclusions of law:
1. Plaintiff, Thaddious L. Kee (Ms. Kee), graduated from Prairie View A and M College with a BS Degree in Business Education and from East Texas State University with a MS Degree in Business Administration.
2. Ms. Kee became a federal employee in 1983 by the Department of the Army as a GS-3 typing clerk at the Red River Army Depot in Texarkana, Texas. In 1984, she became an Army Material Command Intern at the Red River Army Depot, and in 1987 she completed her Army Material Command Intern training. In October, 1986, she was a GS-1102-9 contract specialist at the Red River Army Depot and received extensive formal and on-the-job training experience as a contract specialist.
3. In October, 1986, Ms. Kee became an employee of the Pine Bluff Arsenal (PBA) as a GS-1102-9 contract specialist assigned to its Directorate of Contracting. In September, 1987, she became a GS-1102-11 contract specialist, and from that date to the present, she has functioned as a GS-1102-11 contract specialist.
4. From September 1987 to July 1, 2001, Ms. Kee has always been evaluated in the performance of her job as excellent.
5. At all times material: (1) Colonel Steven T. Chapman (Colonel Chapman), an African-American male, was the commanding officer of the PBA (2) Larry Wright (Mr. Wright), a white male, was the Executive Assistant of the PBA since 1996 and was the second person in command at the PBA (3) Eugene L. Schatz (Mr. Schatz), a white male, was the Chief of the PBA's Civilian Personnel Office (CPO) and (4) Larry Crane (Mr. Crane), an African-American male, was the Director of the PBA's Directorate of Contracting.
6. Mr. Wright had very limited opportunity to personally observe Ms. Kee performing her job duties as a GS-1102-11 contract specialist from 1996 to the present, Mr. Wright also had limited opportunity to observe Elaine Nelson (Ms. Nelson) and Elton Harrison (Mr. Harrison) perform their job duties as GS-1102-11 contract administrators during this same period of time.
7. Ms. Kee was aware that two new GS-1102-12 team leader contract specialist positions would be available in the PBA's Directorate of Contracting. The first GS-1102-12 team leader contract specialist position was announced on or about July 13, 2000, and its closing date was on August 22, 2000. On August 10, 2000 Ms. Kee updated her 72 knowledge and 8 ability ACCES records.
8. On August 10, 2000, Ms. Kee notified Mr. Wright and Mr. Crane of her request for an ACCES rating update. Mr. Wright timely responded and rated her in the area of ACCES knowledge and in the area of ACCES ability on August 10, 2000. Mr. Wright evaluated Ms. Kee in the area of ACCES ability, although he had little opportunity to personally observe her performing the ability criteria in the performance of her job duties. The ACCES ability rating form Mr. Wright completed in evaluating her ability stated, "If a supervisor/reviewer has not personally observed the employee performing the abilities described, then a rating of CR(O)-C cannot rate is warranted."
9. Mr. Crane stated that he did not rate Ms.Kee under the ACCES knowledge or ability criteria until after August 22, 2000 because of his work load.
10. On October 10, 2000 Ms. Kee filed a complaint memorandum with the EEO Office of the PBA because she was not on the list for consideration to be promoted to the GS-1102-12 team leader contract specialist position. The complaint was lodged against Mr. Crane and Mr. Schatz. In the October 10, 2000 complaint, Ms. Kee stated:
In the entire history of Pine Bluff Arsenal, there has never been a Black Female Supervisor in the GS-1102 Series, Grade 12. It does not and did not matter whether or not the Black Females had acquired a Bachelor's and/or a Bachelor and Masters Degree. Preceding type employees have always been supervised or "led" by White Females with a High School Education or a GED, and occasionally by a Black Male.
Mr. Crane and Mr. Wright were informed of Ms. Kee's October 10, 2000 complaint.
11. From the time Mr. Crane became the Director of the Directorate of Contracting at the PBA on or about June 6, 1999 to October 10, 2000, Mr. Crane never complained to Ms. Kee about her attendance at work, and during that same period of time, Mr. Crane never told Ms. Kee that she was not a dependable or reliable employee, nor did Mr. Wright complain about dependability or reliability during that same time frame.
12. On November 1, 2000 Ms. Kee met with Mr. Crane and Mr. Schatz. During that meeting Mr. Crane informed her there would be another GS-1102-12 contract specialist team leader position to be filled in the near future. During the November 1, 2000 meeting, Mr. Crane never complained to Ms. Kee about her attendance at work and he never stated that she was not a dependable or reliable employee.
13. In an e-mail Ms. Kee sent to EEOC Counselor Carl Williams (Mr. Williams) on November 1, 2000, with courtesy copies to Mr. Wright, Mr. ...