                            UNITED STATES DISTRICT COURT
                            FOR THE DISTRICT OF COLUMBIA

_________________________________________
                                          )
DENISE A. BANKS,                          )
                                          )
      Plaintiff,                          )
                                          )
             v.                           )                   Case No. 07-cv-01807 (APM)
                                          )
SONNY PERDUE, U.S. Secretary of           )
Agriculture,                              )
                                          )
      Defendant.                          )
_________________________________________ )


                          MEMORANDUM OPINION AND ORDER

                                                 I.

       In this case, the court ruled that Plaintiff Denise Banks is entitled to reinstatement as a

remedy after a jury found that, in January 2000, she was demoted from the Senior Executive

Service (“SES”) due to sex discrimination. See Banks v. Perdue, 298 F. Supp. 3d 94, 101, 113–

14 (D.D.C. 2018). Since that decision, the parties have tried, but ultimately failed, to reach

agreement as to how to carry out the court’s reinstatement order. Defendant U.S. Secretary of

Agriculture has assigned Plaintiff to the SES-qualified position of Deputy Director for Civil Rights

Operations, which he contends is comparable to the position Plaintiff occupied before her

demotion. See Def.’s Mot. to Resolve Dispute Concerning Equitable Relief, ECF No. 195

[hereinafter Def.’s Mot.]; Def.’s Suppl. Br. in Support of Def.’s Mot., ECF No. 198, at 2. Plaintiff,

on the other hand, disputes that the Deputy Director position is comparable to the one she had

some 19 years ago. See Pl.’s Opp’n to Def.’s Mot., ECF No. 202 [hereinafter Pl.’s Opp’n], at 4–

7. She contends that the new position occupies a lower rung in the agency hierarchy and involves
reduced supervisory authority and lesser responsibilities than her former position. See id. at 5–7.

Plaintiff asks the court to find not only that her present assignment is an inadequate reinstatement

remedy, but to order Defendant to place her into a different position, Deputy Director for the Center

for Civil Rights Enforcement, which she deems comparable. See id. at 7. Alternatively, Plaintiff

asserts that, if the court declines to grant her preferred position, she be allowed to elect front pay

over reinstatement as a remedy. See id. at 10.

       Thus, what remains of this 11-year-old case is for the court to decide whether the position

to which Defendant has assigned Plaintiff is comparable to the one from which she was

discriminatorily demoted in 2000. The court finds that the assigned position is comparable.

If Plaintiff declines to work in the capacity, she will not be entitled to front pay as an alternative

remedy.

                                                 II.

       To begin, the court quickly disposes of Plaintiff’s demand for placement as the Deputy

Executive Director for the Center for Civil Rights Enforcement. The court rejects that request for

the simple reason that Plaintiff’s preferred job is not an SES-designated position. See Def.’s Reply

in Support of Def.’s Mot., ECF No. 204, at 3 (citing Second Suppl. Decl. of Shawn S. McGruder,

ECF No. 204-1 [hereinafter 2d McGruder Decl.], ¶ 3). Therefore, even if the court could assign

Plaintiff to a specific position—a question the court need not address—the job that Plaintiff desires

would not implement the reinstatement remedy. Accordingly, the court will not grant Plaintiff her

requested relief.

                                                 III.

       The court now turns to the issue of whether Plaintiff’s present position satisfies the

reinstatement remedy.      The parties agree that the applicable standard in evaluating the



                                                  2
comparability of her present and past assignments is whether the positions are “roughly equivalent

in pay, benefits, status, and responsibility.” Def.’s Mot. at 6 (quoting McVeigh v. Cohen, 996

F. Supp. 59, 61 (D.D.C. 1998); Pl.’s Opp’n at 2 (agreeing that McVeigh supplies the applicable

standard). Plaintiff does not challenge the equivalency of her pay and benefits. See Pl.’s Opp’n

at 4–7. Rather, she insists that the Deputy Director for Civil Rights Operations involves a lower

status and lesser responsibilities than her prior position as Deputy Director of Civil Rights

(Employment). See id. Plaintiff’s argument, however, is premised on a more exacting standard

than the one she concedes applies. She is not entitled to the same position, only a “roughly

equivalent” one. McVeigh, 996 F. Supp. at 61. The Deputy Director for Civil Rights Operations

satisfies that standard.

        Plaintiff complains that in the new position, she “falls at a lower level in the chain of

command.” Pl.’s Opp’n at 4. Plaintiff asserts that before she reported to the head of the Office of

Civil Rights, “a Senate-confirmed political” position, whereas now she “reports to one of two

Executive Directors two levels down from the head of the Office.” Id. at 5. But the “rough”

equivalence of Plaintiff’s new position to her previous one is evident when, as Defendant explains,

it is viewed in the context of a recent agency reorganization. For starters, as Defendant points out,

Plaintiff is mistaken that her previous supervisor, Rosalind Gray, was a “Senate-confirmed

political appointee.” See Def.’s Reply at 6, 8. Gray was a non-career SES member and political

appointee, but was not Senate confirmed. See id. at 8. Moreover, although Plaintiff is now one

more step removed from the Secretary than before, that is due to a reorganization that added

“Secretarial level positions to oversee all civil rights activities” of the agency. Id. at 8. As

Defendant explains in detail, Plaintiff is effectively in the same level as before, reporting directly




                                                  3
to an administrator that oversees the agency’s civil rights function. Thus, Plaintiff’s new status is,

at least, “roughly” equivalent to her previous one.

       As for her responsibilities, Plaintiff maintains that she now has less supervisory authority

and reduced duties as compared to in her prior position. See Pl.’s Opp’n at 5–6. Not so. Although

Plaintiff directly and indirectly supervises fewer employees than before (60 versus 17, by her

account), see id. at 5–6; Pl.’s Opp’n, Ex. 1, Declaration of Denise Banks, ECF No. 202-1, at 2, in

her new role she now has oversight and coordination responsibilities over seven “Mission Areas”

of the agency, comprising more than 250 full-time employees. See Def.’s Reply at 10–11 (citing

2d McGruder Decl. ¶¶ 8–9). Such an arrangement satisfies the “rough” equivalency standard.

Additionally, Plaintiff only vaguely asserts that her duties are not comparable, as she offers no

specifics about her purportedly reduced role. See Pl.’s Opp’n at 6 (claiming lesser duties in general

categories of “leadership, program delivery, and policy development”). In any event, the duties

are “roughly” comparable. As before, she is responsible for coordinating certain civil rights

activities throughout the agency, planning civil rights training, and interacting with agency

components. See Def.’s Mot. at 4; Def.’s Reply at 11 (citing Final Position Description, Ex. G,

ECF No. 198-1, 8–12). She is also a member of the Assistant Secretary for Civil Rights’s

leadership team. See Def.’s Reply at 11. Plaintiff cannot genuinely argue that she now has

significantly lesser responsibilities than before.

       Finally, although Plaintiff decries that her “liaison” role lacks actual authority, Pl.’s Opp’n

at 7, it is hard to image how that is so. She is responsible for overseeing and coordinating the civil

rights function of over 250 full-time employees in multiple Mission Areas. Surely, this is

“roughly” equivalent to the authority she had before.




                                                     4
           The court therefore finds that Plaintiff’s present position as Deputy Director for Civil

Rights Operations is roughly equivalent to her former post as Deputy Director of Civil Rights

(Employment) in pay, benefits, status, and responsibility.

                                                         IV.

           In the alternative, Plaintiff contends that, if the court declines to place her in her preferred

position, she should be afforded the option of choosing a front-pay remedy instead of

reinstatement. She is not entitled to such an election.

           For starters, Plaintiff’s argument comes too late. In her motion for equitable relief, Plaintiff

expressly stated that front pay would not be an “issue in this case so long as the Court grants

Plaintiff’s request for reinstatement.” Pl.’s. Amend. Mot. for Reinstatement, Back Pay, and Clean

Record, ECF No. 170, at 10; 1 see also id. at 15 n.5. The court granted Plaintiff’s favored remedy.

She cannot now ask for front pay because she is dissatisfied with her present position.

           Moreover, the case that Plaintiff cites for the proposition that she can elect her remedy,

Glymph v. District of Columbia, says the opposite. See Pl.’s Opp’n at 10. There, the court ruled:

If “I determine that the position is comparable and that plaintiff can fulfill its requirements on at

least a part-time basis, but plaintiff refuses to accept the position, the [employer] will have no

obligation to pay plaintiff anything more than the disability payments which she is or will be

receiving.” Glymph, 374 F. Supp. 2d 219, 228 (D.D.C. 2005) (emphasis added). Here, the court

has determined that Plaintiff’s newly assigned position is comparable to her former one. As

Glymph states, if she chooses not to accept it, Defendant will have no obligation to pay her

anything more than the amounts already ordered as back pay.




1
    This pagination reflections the ECF page number and not the page number assigned by Plaintiff.

                                                          5
       Finally, it would be inconsistent with Plaintiff’s status as member of the SES to afford her

the choice between the newly assigned position and front pay. As a member of the SES, Plaintiff

is subject to removal or suspension if she “fail[s] to accept a directed reassignment, or fail[s]to

accompany a position in a transfer of function.” OPM, Guide to the SES, at 24 (Mar. 2007),

available at:     https://www.opm.gov/policy-data-oversight/senior-executive-service/reference-

materials/guidesesservices.pdf (last visited January 4, 2018). The court will not put Plaintiff in a

better position than SES policy authorizes.

                                                 V.

       For the foregoing reasons, the court grants Defendant’s Motion to Resolve Dispute

Concerning Equitable Relief. Within 14 days of this date, the parties shall submit a joint proposed

final order (or separate proposed final orders if no agreement can be reached) incorporating the

Court’s rulings on equitable relief, including an updated total backpay award (inclusive of interest).




Dated: January 9, 2019                                Amit P. Mehta
                                                      United States District Judge




                                                  6
