although it is not certain who suggested that the job description be changed in the first place, Wachob did in fact rely nearly completely on Gorey in July of 1972, to rewrite the description to justify keeping it at the GS-9 pay level. And in the latter part of August, when it was clear from a conversation between Wachob and McMullen that Wachob was still undecided about whether the position should be abolished, it was to Gorey that Wachob turned for final advice.
Given Wachob's indecision and his reliance on Gorey, and given the general practice that government jobs are only rarely abolished or redefined, the Court concludes that, had Gorey not been prejudiced against McMullen:
(1) in July of 1972, Gorey would either have persuaded Wachob to leave the position as it was or have succeeded in redefining it well enough to justify keeping the position existent at a GS-9 salary level;
(2) in late August, when Wachob turned to Gorey for advice, Gorey would have recommended that Wachob keep the GS-9 position, and this recommendation would have been persuasive.
In short, the Court concludes that Gorey's racially motivated influence was a cause-in-fact of Wachob's decision to abolish the position.
The government also argues that even if the position had not been abolished, since there were four other qualified applicants for it, the odds were against McMullen being the one chosen, even if he had not been discriminated against. But the record shows that management at the Observatory was intent on hiring someone from within the Observatory for the job. As to the position as originally defined, McMullen was the only one in the Observatory rated as qualified to fill it. As to the position as it might have been redefined by Gorey if he had not been prejudiced against McMullen, Wachob gave repeated assurances to McMullen that indicate that the plaintiff would have been the one chosen for it. Therefore, this argument cannot help the government either.
In sum, the Court finds that the plaintiff has shown that illegal prejudice was a cause-in-fact of his failure to be promoted to a GS-9 pay level in August of 1972.
The plaintiff's second claim is that because he is black or because he filed an EEO complaint alleging job discrimination, he was denied reimbursement for accounting classes he attended during the fall, 1972, semester. The facts, basically, are these. About the same time that the plaintiff was seeking a promotion, he asked his supervisors if the Observatory would pay his tuition for certain work-related classes he planned to attend during the upcoming semester. Such grants are apparently given as a matter of course, and in previous semesters McMullen had gotten them without any problems. Shortly after he filed his complaint alleging job discrimination, however, Gorey told him that funds to reimburse him would not be available that semester. This was simply not true; Davidson later testified that it was clear at the time that funds were available. Subsequently, Wachob also told him that funds would not be available.
Because of what he was told, McMullen did not make formal application for reimbursement and did not get any for the fall term. He did apply, and he was reimbursed, however, for the spring term.
In this Court's view, the fact that the two supervisors told the plaintiff something which was clearly untrue so soon after the plaintiff had filed an EEO complaint leads inevitably to the inference that they did so in retaliation against McMullen's action. The government has done nothing to rebut this inference. Therefore, the Court finds that the failure to reimburse the plaintiff for classes he took during the fall, 1972 term was a direct result of illegal discrimination.
McMullen has first sought compensation for the injuries he has suffered. The Supreme Court has given some guidance in this area in Albemarle Paper Co. v. Moody, 422 U.S. 405, 45 L. Ed. 2d 280, 95 S. Ct. 2362 (1975). There the Court gave the following standard to be used in determining whether to award back-pay as compensation in Title VII suits against private industry:
Given a finding of unlawful discrimination, backpay should be denied only for reasons which, if applied generally, would not frustrate the central statutory purposes of eradicating discrimination throughout the economy and making persons whole for injuries suffered through past discrimination. [ 422 U.S. at 421] [footnote omitted]