The opinion of the court was delivered by: PRATT
Plaintiff Kurylas alleges a cause of action under Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. § 2000e et seq., and under 42 U.S.C. § 1981. Jurisdiction is laid in the Court pursuant to 28 U.S.C. § 1343(4), 42 U.S.C. § 2000e-5(f) (3) and 28 U.S.C. §§ 2201, 2202.
The present posture of this case requires a brief exposition of the essential facts herein. The events leading to this action began when defendant Bartie T. Woods, Jr., plaintiff's immediate supervisor, prepared an "Employee Appraisal" form, USDA Form C-MS-301, evaluating plaintiff's job performance during the period January 1, 1970 to May 31, 1971. With respect to Performance Evaluation Factor (PEF) 5, "Communicating Orally," defendant Woods rated plaintiff as "D" ("barely meets normal position requirements"). Upon receipt of his copy of the appraisal, plaintiff objected to this "D" rating. Informal attempts to rectify the situation failed and on June 28, 1971, plaintiff filed a formal Equal Employment Opportunity (EEO) complaint with USDA.
On July 6, 1972 a hearing was held before John B. Taylor, EEO Appeals Examiner for the U.S. Civil Service Commission, which inquired into the single issue of "whether plaintiff was discriminated against because of national origin (Polish-American) by the agency assigning him a low performance rating." See Statement of Findings, Analysis and Recommended Decision in the Equal Employment Opportunity Complaint Case Of Dr. Stephen B. Kurylas at 4. As a result of the hearing the EEO Appeals Examiner recommended a finding that the plaintiff had been discriminated against because of national origin inasmuch as plaintiff's adverse rating was arrived at for reasons "unrelated to his actual ability." To remedy said discrimination, the Examiner proposed the following:
(1) That the Employee Appraisal Forms dated June 17, 1971 and February 25, 1972, be expunged from plaintiff's file.
(2) That a new Employee Appraisal Form be prepared for the period June 1, 1970 to the next scheduled rating, retaining the performance appraisal levels shown in section "B" of HE No. 2, dated February 25, 1972, omitting the narrative in section "F" referring to PEF 5, and rewriting the narrative in reference to PEF 16, to be compatible with the Examiner's findings.
(3) That the agency conduct a review to determine whether complainant had been denied equal consideration for promotion because of the low performance rating discussed above.
(4) That plaintiff be given a retroactive promotion if after the review, the agency determines that plaintiff would have been promoted but for the challenged ratings.
(5) That if the agency determines plaintiff was not disadvantaged and if plaintiff disagrees, then plaintiff should be advised he may file a formal complaint.
(6) That the Director, Office of EEO, "closely review and analyze the total files in this case concerning the roles played by Messrs. Woods and Mootz . . . to determine whether censuring action should be considered." (I Tr. 53-56)