at GS-9 level in Personnel, and plaintiff's objection to the Board's interpreting the recommendation in such a manner is well taken. In order to make him whole for his experiences, Franklin must be given all opportunities to transfer to any position at GS-9 for which he is qualified, though not necessarily as an intern unless otherwise eligible, either at or outside of WRAMC, in or out of Logistics. Accordingly, in Civil Action No. 2127-72, defendants' Motion for Summary Judgment affirming the decision of the Appeals Board shall be granted in part and the Appeals Board decision is modified as indicated above.
Plaintiff Franklin also seeks to pursue this matter as a class action, but because summary judgment has been granted as to his individual claim, he can no longer be representative of any class and the class theory is improper. This would be true even if summary judgment were unwarranted, because Franklin's complaint before the Court goes only to the adequacy of the corrective action taken on his behalf.
Plaintiff Hackley, in Civil Action No. 1258-72, complains that after one year's service as an investigator at GS-12 he has been denied promotion to GS-13 by the Veterans' Administration because he is black. A hearing was held at which the plaintiff was represented by counsel, and after seven days of testimony reflected in 985 pages of transcript, the Appeals Examiner found no discrimination but recommended better lines of communication between supervisors and employees. The Veterans' Administration adopted the Examiner's findings and decision and after obtaining some additional evidence on the relative treatment of whites and minorities by the defendants, the Board of Appeals and Review, United States Civil Service Commission, affirmed.
Hackley claims there was a racial climate when he was first hired, reflected in part by the racial epithets used by his middle-level supervisors and by the total absence of blacks working in this area which resulted in (1) his being required to take additional training, and (2) not progressing properly to GS-13, his hiring at GS-7 and his earlier prompt promotions to GS-9, GS-11 and GS-12 due to the existence of a black Director of Investigation and Security Service during that period.
Plaintiff's claim is rejected by the administrative agency because (1) he required more training since he was less experienced and (2) the same middle-level supervisors supposedly discriminating against Hackley promoted Hackley to GS-12, promoted a Mexican-American to GS-13 with only 14 months' experience, and denied promotions to whites with far greater experience than Hackley. Here plaintiff claims once more that the administrative record and decision ignore the fact that minority hirings and promotions only occurred during the tenure of a black Director.
Plaintiff's claim must fail. Not only is there no proof that plaintiff received promotions only because at that time he had a black Director who recognized his worth, but there is repeated affirmative evidence in the administrative record making it crystal clear that plaintiff's promotions to GS-12 and his failure to achieve GS-13 are solely related to his qualifications. Plaintiff entered this field with substantially less than the normal relevant investigative experience. Progression to GS-12 was normal as it is rather automatic to proceed one grade scale in about one year if work is satisfactory. However, the GS-13 level is another matter. Such an investigator is judged to be capable of handling any investigation in any program at any level.
At this stage, Hackley's superiors must make a management judgment peculiarly within their own expertise. Their judgment that Hackley is still unqualified for GS-13, though his work is satisfactory at his present level, made after normal evaluations, is completely supported by the record. His performance has sometimes been erratic and improvements are necessary in his investigative judgment, attention to detail, and preparation of accurate, readily understandable reports that follow the format preferred by management. Hackley has made excellent progress and management feels he has a bit further to go. This is not discriminatory treatment. He has very little investigative experience compared to most of his colleagues and therefore quite properly he is required more frequently to assist another investigator in the handling of cases before he gets many complex cases on his own. Moreover, many whites with far more experience have remained at GS-12 for a greater length of time before promotion to GS-13. Accordingly, the administrative decision finding no discrimination is supported by a preponderance of the evidence and defendants' Motion for Summary Judgment shall be granted.
In accordance with the Court's Memorandum Opinion filed this 13th day of July, 1973, it is hereby
Ordered that in Hackley v. Johnson, et al., Civil Action No. 1258-72, defendants' Motion for Summary Judgment shall be and hereby is granted; and it is further
Ordered that in Franklin v. Laird, et al., Civil Action No. 2127-72, defendants' Motion for Summary Judgment shall be and hereby is granted, except the decision of the Board of Appeals and Review, United States Civil Service Commission, is modified as follows:
The defendants shall permit the plaintiff to exercise within a reasonable time not later than 90 days from the date of this Order an option to transfer within or outside Walter Reed Army Medical Center, in or out of the Logistics Division, to any available position at his present GS-9 level, including one in a career intern program, for which the defendants determine he is otherwise eligible.
It Is Further Ordered that plaintiff Franklin's Motion for Issuance of Order to Show Cause and for a Contempt Judgment shall be and hereby is denied.