When Rogers filed his complaint administratively, Ms. Williams, a highly educated, experienced, conscientious employee, was questioned about the circumstances by two EEOC employees: an investigator and an attorney appointed to counsel Rogers. She stated in each instance that Rogers was not the best qualified, and indicated that she had been concerned about the region's "EEO-1" profile and felt a white would reflect a better racial balance. While this racial consideration, impermissible under the circumstances, was never more than a makeweight in her selection, it was a subjective factor taken into account and the selection was therefore not racially neutral.
Thus the remaining issue presented is whether the record establishes a causal relation between resort to this racial factor and Rogers' rejection. Ms. Williams completely denies that racial consideration was involved. However, there was no contemporaneous written statement from her indicating her reasons for selection, and the Court rejects her testimony in this regard. It is thus impossible to measure the significance of her subjective attitude in relation to Rogers' rejection. Race was a factor in the choice. The burden is extremely heavy where that factor is present in any degree to overcome the presumption that it played a part in the decision, and complainant is entitled to a strong presumption that such is the case. The national policy requires strict proof. The Court therefore finds that defendant has failed to rebut plaintiff's prima facie case. McDonnell Douglas Corp. v. Green, 411 U.S. 792, 36 L. Ed. 2d 668, 93 S. Ct. 1817 (1973).
EEOC argues that even if the Court finds some evidence of discrimination plaintiff should not recover because he was not the best qualified applicant for the job. The purpose of Title VII cannot be so easily turned aside, even by an agency charged with special responsibility to enforce the statute. Race played a part in the challenged selection decision. To accept EEOC's view that if this factor is one of two mixed motives governing the selection but is less than the controlling one it should be ignored would be to allow race prejudice again to raise its ugly head. Those who suffer from its effects would again face the constant refrain of "unqualified" so often used in the past to conceal the subtle effect of race bias. Where selection is based on a subjective appraisal and race plays a part, no matter how weighed, in the total factors said to govern choice, the selection is tainted and the rejected party must be made whole.
If race is an improper factor in the selection, as it was here, then Rogers is entitled to relief unless he would not have been selected absent the racial factor. Rogers ranked third. A white ranked second. There is no proof that race did not also affect the second ranking. Accordingly, absent race, Rogers must be deemed to have been the candidate who would have been selected once the improper racial consideration is eliminated.
Rogers asks that Hadfield be displaced and that he, Rogers, be placed in the job with back pay, and also seeks attorney's fees and costs. Assuming the Court has power to displace Hadfield, it declines to do so. On all the proof before the Court he is better qualified than Rogers and the nature of the discrimination shown here does not warrant such drastic relief. Rogers shall receive back pay at the level of the director's job from the date Hadfield took office. This back pay shall continue prospectively until the next District directorship in the Philadelphia region is filled or Rogers is appointed to and accepts a position with equal or better pay. Attorney's fees and costs are awarded.
Judgment for plaintiff Rogers. Counsel to submit form of order within ten days, together with supporting proof on the claim for attorney's fees.
[EDITOR'S NOTE: The following court-provided text does not appear at this cite in 403 F. Supp.]
Order of October 2, 1975
In accordance with the evidence of record and with the opinion of this Court on September 19, 1975, it is hereby ORDERED that:
I. Defendants Equal Employment Opportunity Commission and Lowell W. Perry shall within 90 days from the date of this Order cause to be paid to George T. Rogers the following sums:
(1) $3,370.80 as back pay retroactive to April 14, 1974, and
(2) $509.00 as costs incurred directly by George T. Rogers in this proceeding.
II. It is further ordered that from the date of this Order until April 14, 1976, the Defendants shall pay George T. Rogers at the GS-15, step 2 salary rate. Thereafter, the Defendants shall grant George T. Rogers periodic step increases assuming satisfactory performance, in accordance with the timetables set forth in 5 U.S.C. § 5335.The annual salary rate of George T. Rogers provided for in this paragraph shall continue until the next district directorship in the Philadelphia Region is filled or Mr. Rogers is offered and accepts a position with equal or better pay.
III. It is further Ordered that the Defendants shall, within 90 days from the date of this Order, case to be paid to the law firm of Murtha, Cafferky, Powers and Jordan the sum of $10,000 as attorneys fees and $761.00 as costs incurred by the law firm in this proceeding.
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