Pettit v. United States , 488 F.2d 1026 ( 1973 )

Nichols, Judge,

delivered the opinion of the court:

Plaintiff is a black who is employed at the Aberdeen Proving Grounds at Aberdeen, Maryland, and is a classified Federal Civil Service employee, Engineer Human Factors in the Human Engineering Laboratory (HEL), Aberdeen Proving Grounds. He brings suit to recover for his losses resulting from the Government’s failure to promote him because of racial discrimination practiced by its employees.

Plaintiff’s case is distinguished from racial discrimination cases previously heard by this court in that he seeks to recover not only back pay, but also either compensation for future losses or to be promoted to that position he would have attained, but for “racial discrimination”. Jurisdiction is asserted under 28 U.S.C. § 1491, which provides as follows:

The Court of Claims shall have jurisdiction to render judgment upon any claim against the United States founded either upon the Constitution, or any Act of Congress, or any regulation of an executive department, * * * To provide an entire remedy and to complete the relief afforded by the judgment, the court may, as an incident of and collateral to any such judgment, issue orders directing restoration to office or position, placement in appropriate duty or retirement status, and correction of applicable records, and such orders may be issued to any appropriate official of the United States. * * * (Supp. II, 1972).

This plaintiff relies on Executive Order No. 10722,3 C.F.IÍ. 1954r-1958 Comp., p. 384 (1957); Executive Order No. 10925, 3 C.F.B.. 1959-1963 Comp., p. 448 (1961) ; Executive Order 11114, 3 C.F.R. 1959-1963 Comp., p. 774 (1963) ; Executive Order 11162, 3 C.F.E. 1964 — 1965 Comp., p. 215 (1964); Executive Order 11246, 3 C.F.E. 1964-1965 Comp., p. 339 (1965), now Executive Order 11478, 3 C.F.E. 1966-70 Comp., p. 803 (1969); and the Eegulations of the Civil Service Commission, 5 C.F.E. §§ 4.2 and 713.202. These provisions explicitly require all Government agencies to offer their employees equal opportunities in all respects without regard to race.

The present controversy originated in April 1967. Plaintiff as an Electronic Engineer, GS-ll, Step 7, filed a complaint alleging that he was denied promotion to GS-12 solely because of his race. The complaint was investigated by Earl E. Haag, Deputy Equal Employment Opportunity Officer. Mr. Haag, in his Summary of Investigation concluded that Mr. Pettit’s complaint was baseless.

Plaintiff requested a formal hearing. The Hearing Officer, William J. Bivens, concluded in his voluminous Statement of Findings of Fact and Eecommendations that “Mr. Pettit’s failure to be promoted from GS-ll to GS-12, was not the result of racial discrimination, but rather because Mr. Pettit did not merit a promotion.” However, he went on to note that Mr. Pettit was denied equal employment opportunity in the following particulars:

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b. The display of Confederate flags in Mr. Pettit’s work area had the effect of saying to him and fellow employees that he was not accepted as an engineer on the same basis and with the same professional status as white engineers. The incident at the Ballistic Eesearch Laboratory when Mr. Pettit was attempting to make a point in a panel discussion during a television program and Mr. McCain used his lighter which played Dixie and the people laughed had the effect of including Mr. Pettit as the object of their laughter as he was the only Negro present and as he was attempting to speak at the time. This was a rude and demoralizing act which was embarrassing to Mr. Pettit, a Negro engineer, in the presence of his white colleagues, * * *

c. Eeferences to Mr. Pettit and Mr. Gentry or statements to them as “boys” did not accord them the same professional recognition as given to white professionals, * * *

d. Failure to provide Mr. Pettit the same facilities and treatment respecting desk telephone instruments and position of name on routing slip as provided to white professionals was a denial of equal professional status and as such a denial of equal employment opportunity, * * *

Also he found instances where other black employees at HEL were denied equal employment opportunity, specifically with respect to promotions.

Plaintiff’s complaint apparently had been triggered by the decision of a Mr. Erickson, a supervisor, in January 1967, to recommend the promotion of plaintiff’s white fellow workers Kurtz, Emery and Randall. The first two were shortly thereafter promoted from GS-11 to GS-12 in competitive personnel actions. Randall’s promotion is less relevant as it was only from GS-9 to GS-11, plaintiff’s grade, so he could not have considered himself in contention for it. By the competitive system, the personnel officer prepared a slate of names of persons shown by computerized data to be well qualified. The supervisor chose a name from this slate. Employees did not know whether their names were on the slate, nor the reasons therefor. The system was found by Mr. Bivens to induce poor morale in anyone passed over as he could not know how or why. This was the competitive promotion system. The plaintiff here also complained and still complains that three lateral transfers by which he was moved from one organizational subdivision to another, in 1964, 1966 and 1968, were motivated by a desire to remove him from competition for anticipated competitive promotions. The record makes it doubtful whether a lateral transfer would have that effect.

On October 31, 1969, Hearing Officer Bivens retired from Government service. Thereafter John H. Vogel was appointed as Successor Hearing Officer in order to evaluate the prior Hearing Officer’s Findings of Fact and Recommendations in light of plaintiff’s rebuttal testimony. Mr. Vogel in ¡his Supplementary Statement of Findings of Fact and Recommendations as the Successor Hearing Officer, concurred in his predecessor’s Findings of Fact :and Recommendations.

The Findings of Fact and Recommendations of the Hearing Officer and the Successor Hearing Officer were modified by Headquarters, United States Army Materiel Command (AMC), and a copy of said modifications was sent to plaintiff with, a letter dated June 23,1970, signed by Major General Leo B. Jones, Chief of Staff. The relevant portions of the Modification of the Findings of Fact and Recommendations of the Hearing Officer and the Successor Hearing Officer in the Equal Opportunity Complaint of Mr. George D. Pettit, concluded as follows:

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2. The evidence disclosed that there were three Negro employees at HEL who left the employment of the Labs due, in part, to evidence of the absence of further promotion opportunity at this activity. There is further evidence that Mr. Pettit would not iahe the same course of action that the other Negro employees took to alter their situation, i.e., take employment elsewhere. Mr. Pettit was an activist in working to integrate the schools in Harford County, he stayed and fought for equality and his constitutional rights rather than accept the status quo or move to an area where his rights would have been provided for him without conflict. Whether he should have stayed and pursued his efforts to break the patterns of exclusion is not relevant to this case, the results of his efforts are.

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4. a. Evidence of racism runs through the substance of testimony relating to the treatment of black employees under the direct or indirect supervision of Dr. John Weisz. Dr. Weisz appeared to be oblivious to the needs of his minority group employees and impervious to the acts of discrimination practiced by subordinate supervisors such as Erickson, McCain, Randall and Cruse. * * *

b. Hearing testimony and evidence disclosed still another case in which a Negro employee was deprived of equal opportu/nity for promotion. * * *

c. The finding of the Hearing ’Officer that “Negro professionals previously employed at HEL left to seek and obtain employment elsewhere because equal employment opportunity for advancement was not accorded them at HEL” is borne out by the evidence. (Statement of Findings of Fact and Recommendations, 300) That appropriate action needs to be taken to reverse this situation is evident. There can be no separation of the actions of HEL in failing to promote Negroes, who subsequently took other employment where their talents were recognized, and the instant case of the blach employee who stayed, cmd attempted to change the system.

d. The evaluation of Mr. Pettit’s performance in assigned work projects showed that of eleven assigned projects he performed at a level above average or excellent in three; average in two, marginally satisfactory in four and unsatisfactory in two. Consideration must be given to the environment in which this performance occurred. If we accept the conclusion that discrimination was practiced by Pettit’s supervisors, then we must recognize that a harmonious, cooperative relationship could not exist between the complainant and his colleagues. His performance would have to be weighted in some manner in order to overcome the adverse conditions of his work environment. (All above emphasis supplied by plaintiff.)

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The Recommendations of the Army read as follows:

In view of the discriminatory actions to which Mr. Pettit has been subjected by his supervisors, he should be given preferential consideration for promotion to the next GS-12 vacancy within Human Engineering Laboratories provided he is among the best qualified candidates referred. Further, in order to preclude any future display of discriminatory actions, the supervisors who were found to have engaged in such practices against Negro employees should be disciplined and any promotion actions in which they would be the selecting official pre-audited by AMCDL for compliance with required technical competence requirements for referred applicants.

While these Findings are not without ambiguity, we read them as rejecting the holdings of the Hearing 'Officers that plaintiff’s non-promotion was due to lack of qualification. They substitute, instead, the notion that somewhere along the line, or more than once, a personnel action or actions were taken, that passed the plaintiff over for promotion because of his race and not on the merits. Here, as in other of these cases, we confront reports which omit the specific we would need for a back pay award for the reasons, among others, that the writers were not aware that back pay could be awarded or that we would desire details of personnel actions.

The plaintiff accepted the Modifications of the Findings of Fact, but appealed the recommended actions to AMC. In his letter of appeal Pettit requested: 1) an immediate promotion to GS-12, 2) effective date of such, promotion retroactive to 1960, 8) immediate opportunity to compete for a GS-13 position, 4) restitution for expenses of hearing to include attorneys’ fees, and 5) a cease and desist order against the management of the laboratories. Said appeal was denied by a letter from Albert Kransdorf, Director of the Employment Policy and Grievance Review Staff of AMC, dated September 22, 1970, and received by Pettit on October 2, 1970. The letter deemed Mr. Pettit’s request that he be promoted to GS-12 satisfied by his promotion to that level which was effective as of August 10, 1970. However, the letter went on to say the plaintiff’s request for retroactive promotion was barred by decisions of the Comptroller General and that there was no provision made under the Federal Equal Opportunity Program to reimburse complainants for expenses incurred by them in pursuing their claims. It also advised Pettit of his right to appeal to the Board of Appeals and Review (BAR), United States Civil Service Commission, “no later than 15 days from the date you receive this decision.”

Mr. Pettit says he did not want to appeal before determining what management was going to do to implement the Army’s directive and that he was advised to await such information by Aberdeen EEOO. The fifteenth calendar day fell on Saturday, October 17,1970. Mr. Pettit could not appeal on that or the following day since the office was closed for the weekend. On Monday, October 19,1973, Pettit called to determine if it was too late to file an appeal, pointing out that his telephone call could be considered an appeal. He was told to send a letter explaining his reasons for delay and an affidavit from the Aberdeen EEOO to corroborate Petitt’s allegation that they suggested that he delay making an appeal. Mr. Pettit reduced his appeal to writing in a letter dated October 20, 1970, and received by BAR on October 22, 1970. Mr. Pettit further explained 'his delay in filing an appeal in the letter as follows:

The promotional plan offered by Mr. Stephens was received by me at closing time, 17 Oct. 70. It is my judgment that the lateness of my receiving details of management’s plans were part of their design and was an •attempt, on their part, to lull _ me into inactivity, thereby causing me to forfeit my right of appeal. * * *

The plaintiff’s appeal was denied by BAR on January 20, 1971, on the grounds of its lack of timeliness and a Comptroller General decision denying the Commission authority to make retroactive promotions.

On October 15, 1971, the Court of Claims decided Chambers v. United States, 196 Ct. Cl. 186, 451 F. 2d 1045; and Allison v. United States, 196 Ct. Cl. 263, 451 F. 2d 1035 (1971). These cases support the proposition that the Court of Claims will grant a plaintiff back pay where he can show he would have been promoted at a specific time if it were not for discrimination. Based on these decisions the plaintiff petitioned the Civil Service Commission, the General Accounting Office, Department of the Army, and Army Materiel Command for reconsideration. Plaintiff requested those Agencies and Departments to award him 'back pay and compensation for losses to be incurred in the future as the result of past discrimination, based on his computations. All Agencies denied their authority to do either until authorized by GAO and therefore accepted his appeal as filed before them, but deferred to the decision making power of the GAO.

GAO advised plaintiff’s counsel on June 5, 1972, that it would not follow the decisions of this court, but would again deny the Government’s power to pay on a retroactive claim arising out of discrimination. Plaintiff considered such denial that of the petitioned Agencies and Departments since they apparently vested their decision making power in GAO, and therefore he petitioned this court for relief on June 19,1972.

While the GAO has no power to review the decisions of this court, United States v. Jones, 119 U.S. 477 (1886), its decisions respecting money claims are binding on the Executive branch of the Government, 31 U.S.C. §§ 44, 71, 74. It is, therefore, futile to press before Executive Agencies a claim the Comptroller General has rejected, whether rightly or wrongly. The Government argues however that this court has no 28 U.S.C. § 1491 jurisdiction of cases for back pay and other relief under the “Civil Rights” Executive Orders. This contention does not merit further discussion since it has been previously rejected by this court in Chambers and Allison, supra. Defendant admits that plaintiff has no right to sue under the Equal Employment Opportunity Act of 1972, Pub. L. 92-261, which confers jurisdiction for the future on the District Courts. A suit here by a plaintiff hawing access to the District Court would raise a different question, with which we do not deal.

The Government’s defense of failure to exhaust administrative remedies is also without merit. BAE. was in error in dismissing plaintiff’s appeal as untimely. This is true even if the 15 day period for appealing AMC’s decision is measured by “calendar days” rather than “working days” as contended by the defendant. Plaintiff had only 14 calendar days to appeal since the fifteenth day fell on a Saturday during which no one was present at BAE to receive the appeal. Both the Federal Eules of Civil Procedure and the Eules of the court take into consideration the fact that most Government offices are closed on Saturdays, Sundays and Plolidays by extending a deadline that falls on such a day to the next working day. Fed E. Civ. P. 6(a), Ct. Cl. E. 25(a). Pettit’s telephone call on Monday, October 19, possibly was sufficient to constitute a timely appeal since he was not told flatly that the notice of appeal would have to be in writing, and the call was followed up in writing shortly afterwards. The sufficiency of a notice of administrative appeal should be liberally construed as long as an adverse party is not prejudiced thereby. See, Gernand v. United States, 188 Ct. Cl. 544, 412 F. 2d 1190 (1969), where this court held that a letter to President Kennedy was sufficient to constitute notice of .appeal to the Civil Service Commission. Moreover, the futility of pressing before an Executive Agency a money claim the GAO has rejected, must be obvious to all, and in Allison, supra, we viewed it as excusing the plaintiffs from running out their string with the BAE, to achieve a sufficient exhaustion of administrative remedies to satisfy the doctrine involved.

We reaffirm our prior cases holding that Government employees are entitled to back pay where they can show that but for specific instances of racial discrimination, favorable personnel action would 'have been taken. Chambers v. United States, supra; Allison v. United States, supra; Small v. United States, 200 Ct. Cl. 11, 470 F. 2d 1020 (1972).

In Chambers, the court bad before it a unique record. It was conceded by the Government that plaintiff, an otherwise qualified black woman, would have been appointed to a clerk typist Government position, if it were not for racial discrimination. The administrative record in this case comes close to such an admission but does not make it explicitly. Administrative Findings were made by the local EEO Officer, two Hearing Officers, and the Headquarters AMO, in that temporal sequence. The EEO Officer found no merit at all to plaintiff’s allegations, but the two Hearing Officers both found numerous instances of racial discrimination, although they determined that such practices had not resulted in denial of promotions. Headquarters, AMO, was critical of the Hearing Officer’s conclusions and issued its own “Modifications”, which come close to admitting that plaintiff was denied promotion for racial reasons. After noting that other black professionals had left the same laboratory because of lack of equal advancement opportunity, the AMC found that “there can be no separation of the actions of HEL in failing to promote Negroes, who subsequently took other employment where their talents were recognized, and the instant case of the black employee who stayed and attempted to change the system.” This language cannot be read as fully meeting the “but for” test as plaintiff contends. The specific Findings, necessary for relief, which were requested on remand in Allison, sufra, are absent here. AMO did not say that Pettit was denied relief solely because of his race in haee verba although it strongly implies that such was the ease. It did not go on to determine whether Pettit was qualified for promotion at some earlier time, whether earlier vacancies existed at Aberdeen which Pettit could have filled, or whether there were funds available to pay Pettit at a higher grade. However, we are mindful of the fact that the Findings were made prior to the Chambers and Allison decisions. At that time there was no reason for AMO to cast its Findings in the pattern required by those decisions.

The record in this case is significantly different in its showing of discrimination from that in Small, supra, where we held that back pay could not be awarded since all possible officials were exonerated from “personal” wrongdoing and “personal” wrong was not done. The very presence of discrimination, which defendant denied in Small is conceded in this case. The alleged specific personnel actions that discriminated against Small took place long before the complaint, and the records relating to them had been destroyed in the normal course of records disposal. The court thought that it appeared impossible for any fact ‘finder to make an informed or reasoned determination whether such actions were discriminatory or not. Here, however, the discriminatory personnel actions Pettit alleges were recent, some of them at least, and susceptible of careful investigation which actually took place. The initial Finding that Pettit’s non-promotion was due to his lack of qualification was emphatically rejected by higher authority, in words implying a belief the real cause was discrimination, by identifiable and identified officials. Thus the gaps deemed fatal to Small’s case are filled here. But we lack a specific Finding of the grade and pay of the position Pettit would have filled, but for discrimination, and the date of the personnel action by which he would have filled it. The procedure used in making competitive promotions requires the exercise of discretion, and such exercise is not for us, at least not in adjudicating back pay claims.

In sum, although Mr. Pettit avoids the short shrift given the plaintiff in Small, he does not come to this court with administrative Findings that meet the requirements necessary for relief as laid out in Chambers and Allison. Therefore we remand to the Civil Service Commission under the authority given to us by Congress in 28 IT.S.C. § 1491, as amended by Pub. L. 92-415 (August 29, 1972) to hear evidence and make Findings on the missing elements enumerated above.

Equal Employment Opportunity cases present this court with the difficult task of maintaining the delicate balance between two considerations which are difficult to reconcile. We do not intend to pay mere lip service to a legal right by saddling plaintiffs with a burden of proof so high as to preclude a remedy in most of the typical cases of this sort. On the other hand, that a plaintiff is black does not mean he is excused from the clear-cut showing of legal wrong required of other claimants, or that we are desirous of usurping the discretionary decisions of the Executive branch as to the opening of vacancies, the availability of funds, or the relative qualifications of different applicants for competitive promotion.

The Supreme Court resolved this dilemma in a recent case where plaintiff claimed defendant failed to rehire him because of racial discrimination. This was done by shifting the burden of proof to the defendant once plaintiff established a prima facie case. The case, McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802 (1978), contains relevant language as follows:

The complainant in a Title VII trial must carry the initial burden under the statute of establishing a prima facie case of racial discrimination. This may be done by showing (i) that he belongs to a racial minority; (ii) that lie applied and was qualified for a job for which the employer was seeking applicants; (Mi) that, despite his qualifications, he was rejected; and (iv) that, after his rejection, the position remained open and the employer continued to seek applicants from persons of complainant’s qualifications.13 * * * (Footnote omitted.)

The burden then must shift to the employer to articulate some legitimate, nondiscriminatory reason for the employee’s rejection. *■ *■ *

Footnote 13 in the quotation above notes that “prima facie proof required from respondent is not necessarily applicable in every respect to differing factual situations” which will necessarily occur under Title VII. This is also true of cases brought under the “Civil Eights” Executive Orders such as we have here. We, therefore, hold that a prima facie case of failure to promote because of racial discrimination is made by showing: (i) that plaintiff belongs to a racial minority, (ii) that he was qualified for promotion and might have reasonably expected selection for promotion under the defendant’s on-going competitive promotion system, (iii) that he was not promoted, and (iv) the supervisory level employees having responsibility to exercise judgment under the promotion system betrayed in other matters a predisposition towards discrimination against members of the involved (minority. These matters are all established in the Findings herein. The 'burden may be deemed shifted to defendant to show, as to each passing over of plaintiff, where he might have been selected, that the non-selection was for legitimate, non-discriminatory reasons. See, Taylor v. Safeway Stores, Inc., 365 F. Supp. 468 (D. Colo. 1973), where a similar approach was taken in a Title VII case involving the discharge of an employee because of alleged racial discrimination.

Plaintiff’s contention that he is entitled to recover back pay without consideration of the merits because allegedly the Army failed to comply with the applicable procedural regulations is not supported by the authorities cited. Even if we accept as true plaintiff’s allegation that he was divested of procedural rights, the cases which he cites apply only to adverse personnel actions such as discharge or demotion rather than a failure to promote as we have here. Service v. Dulles, 354 U.S. 363 (1957) (discharge); Vitarelli v. Seaton, 359 U.S. 535 (1959) (discharge); Greene v. United States, 376 U.S. 149 (1964) (loss of security clearance) ; Chisholm v. United States, 149 Ct. Cl. 8 (1960) (discharge); Garrott v. United States, 169 Ct. Cl. 186, 340 F. 2d 615 (1965) (termination of retirement annuities).

We, therefore, deny both cross motions for summary judgment and remand to the Civil Service Commission, pursuant to Pub. L. 92-415, 28 U.S.'C. § 1491, for further proceedings consistent with this opinion. The iCivil Service Commission can seek guidance from the Equal Employment Opportunity Act of 1972, Pub. L. 92-261, which expressly confers on the Commission power to grant back pay in cases such as this. In accordance with this 'Court’s General Order No. 3 of 1972, plaintiff’s attorney of record shall advise this court, by letter to the clerk, of the status of the remand proceedings. Such advice shall be given at intervals of 90 days or less, commencing from the date of this opinion.