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MCMULLEN v. WARNER

July 26, 1976

CLIFTON E. McMULLEN, SR., Plaintiff,
v.
JOHN W. WARNER and EDWARD A. DAVIDSON, Defendants



The opinion of the court was delivered by: SIRICA

This is a Title VII racial discrimination suit filed by a black male who was, at the time in question, employed as an accountant by the Navy Department at the U.S. Naval Observatory. Both sides have filed motions for judgment on the administrative record.

 I.

 The plaintiff Clifton E. McMullen alleges that he has been discriminated against in two ways:

 (1) because he is black, he was denied promotion to a GS-9 pay level position in the summer of 1972;

 (2) because he is black, or because he filed an EEO complaint with regard to the first instance of discrimination, he was denied financial aid under a Navy Department grant program for work-related classes he attended during the fall of 1972.

 McMullen was promoted to another GS-9 position in March of 1973. As compensation for his failure to be promoted in August of 1972, he seeks the pay he missed because of the delay in promotion, which amounts to $535.30, plus interest, and the seniority he feels he is entitled to. With regard to tuition payment, he seeks the $157 he had to pay to the school himself, plus interest.

 In addition, McMullen has sought some general injunctive relief -- an order restraining officials at the Observatory from discriminating against him any further, and one commanding them to review their EEO practices and affirmative action programs.

 Finally, he has petitioned for an award of reasonable fees for his attorneys' representation of him through the administrative process and this Court.

 The government has responded that the Court should give no relief. As to the request for compensation, it admits that McMullen was to some extent discriminated against when he applied for a promotion in the summer of 1972, but denies that he would have gotten the job in any event; it claims that the position for which he applied would still have been abolished, as it in fact was, or that McMullen would likely not have been the one chosen to fill it. In addition, the government denies that the fact that he is black or that he filed an EEO complaint had anything to do with his failure to receive financial aid for school in the fall of 1972; it argues that the officials at the Observatory were compelled to refuse him aid because McMullen did not fill out a formal request.

 As to the plaintiff's petition for injunctive relief, the government claims that this relief would be unwarranted since the Navy Department has taken steps to prevent minority discrimination at the Observatory in the future.

 As to the petition for attorneys' fees, the government claims that the applicable statute, 42 U.S.C. § 2000e-5(k) (1970), does not authorize the award of attorneys' fees for representation in court when the plaintiff loses, and not for representation before an administrative body at all.

 The Supreme Court has recently made clear in Chandler v. Roudebush, 425 U.S. 840, 96 S. Ct. 1949, 48 L. Ed. 2d 416, 44 U.S.L.W. 4709 (1976), that the plaintiff McMullen has the right to a trial de novo if he desires one. But since additional testimony at this juncture would probably be unprofitable, he has indicated that he is content to rest his case on the administrative record already submitted. The government, for its part, has not given any indication that it wishes to produce additional evidence. Therefore, the Court has reviewed the record as it stands and has drawn those inferences from the facts presented that appear reasonable. It has found, for the reasons which follow, that the plaintiff has shown that he was illegally discriminated against with regard to both his promotion application and his request for financial aid for school, and that the discrimination on both counts was a cause-in-fact of the plaintiff's failure to be promoted in the summer of 1972, and to receive financial aid in the fall of that year. Because of this latter finding, the Court need not reach the legal issue raised by the parties concerning the burden of proof on the cause-in-fact question.

 For reasons which also follow, the Court concludes that the plaintiff's showing entitles him to the compensation sought, and to an award of attorneys' fees through both the administrative and judicial proceedings. However, the ...


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