Searching over 5,500,000 cases.

Buy This Entire Record For $7.95

Official citation and/or docket number and footnotes (if any) for this case available with purchase.

Learn more about what you receive with purchase of this case.



July 28, 1977

JOSEPH F. DUAL, SR., Plaintiff,

The opinion of the court was delivered by: GASCH

[EDITOR'S NOTE: The following court-provided text does not appear at this cite in 446 F. Supp.]

ORDER [July 28, 1977]

 This matter having come on for a trial de novo and, upon consideration of all of the evidence, the Court having found that judgment should be entered as provided by the Court's Memorandum issued this day which briefly sets forth the Court's findings of fact and conclusions of law, it is by the Court this 28th day of July, 1977,

 ORDERED that Judgment be, and hereby is, entered in favor of the defendant in connection with plaintiff's promotion claim; and it is further

 ORDERED that Judgment be, and hereby is, entered in favor of plaintiff in connection with his retaliation claim; and it is further

 ORDERED that defendant and its officers and agents shall, as specified in the Court's Memorandum, immediately reassign plaintiff to a counseling position such as he held prior to his transfer to his present position in 1976, allow him to resume his former duties without loss of grade, and desist from further retaliation or harassment of plaintiff in any way; and it is further

 ORDERED that plaintiff's request for compensatory damages be, and hereby is denied; and it is further

 ORDERED that, as specified in the Court's Memorandum, plaintiff's request for punitive damages, as well as his entitlement to any additional relief not expressly herein provided, shall be held in abeyance by the Court pending the defendant's prompt compliance with this Order.


  MEMORANDUM (July 28, 1977)

 This is an action under Title VII of the Civil Rights Act of 1964, as amended by the Equal Employment Opportunity Act of 1972, 42 U.S.C. §§ 2000e, et seq. Plaintiff Joseph F. Dual, Sr., is a black male, fifty-nine years of age, who is employed by the defendant General Services Administration ("GSA") in Region 3 of its Public Buildings Service ("PBS"), as a Buildings Management Specialist. His complaint of racial discrimination charges the defendant agency with wrongfully denying him a promotion to the position of Supervisory Labor Management Relations Specialist in 1975 and with undertaking certain extreme measures of discriminatory retaliation against him after he subsequently filed an employment discrimination complaint in connection with that promotion denial. Upon the Court's full consideration of the evidence adduced at trial, and for the reasons briefly set forth below, the Court finds that plaintiff has failed to prove that his non-selection for the supervisory position in question was discriminatory, but that he has amply proven discriminatory retaliation by the agency and is therefore entitled to full relief appropriate to that latter claim.


 The evidence presented in this case is clear and for the most part undisputed. Plaintiff has been employed by GSA since 1962, *fn1" when he was hired as a carpenter. In 1969, he accepted an opportunity offered by PBS's Chief of Buildings Operation to enter a position in which he would render personal and vocational counseling services to GSA employees. *fn2" From 1969 through 1975, under the position title of "Buildings Management Specialist," *fn3" plaintiff performed in this field with a measure of diligence and ability which, according to every available indication, was nothing short of exemplary. During the course of that period he received three promotions, advancing from the GS-7 level to that of GS-12. He also received numerous awards and commendations in recognition of his excellent service, including three special achievement cash awards and six perfect attendance awards covering the years 1967-1973. *fn4" Moreover, plaintiff's performance ratings during those years reveal that his work was repeatedly evaluated as "exceptional," "outstanding," and "superior" by his supervisors. *fn5"

 In 1972, plaintiff's duties were further expanded as part of efforts initiated by GSA to make formal equal employment opportunity counseling available to its employees. A memorandum distributed throughout the Public Buildings Service at that time announced GSA's new Equal Employment Opportunity Program and declared as follows: "Mr. Joseph Dual is our Equal Employment Opportunity Counselor for PBS and is available for personal consultation regarding EEO, or any personal and financial problems you may be encountering." *fn6" Thereafter, plaintiff devoted a substantial portion of his time to EEO counseling, often meeting with GSA employees on his own time when the workload so demanded. *fn7"

 The events giving rise to this action originated in 1974, with the first of three recent structural reorganizations of the Public Buildings Service. At that time, a Management Operations division was established within PBS, containing five newly-created staff elements. *fn8" Under this new structure, the counseling functions performed by plaintiff and his co-workers were placed in a staff element known as "Unions and EEO Administration." One of plaintiff's co-workers, one Jerry Kaplan, was selected to be temporary supervisor of this staff and in early 1974 was detailed to that position. *fn9"

  More than a year later, in August of 1975, this supervisory position was the subject of a formal vacancy announcement. The only two candidates to compete for this position, plaintiff and Kaplan, were evaluated by a screening panel, found "qualified" and "highly qualified" respectively, *fn10" and were referred to Acting Director of the Management Operations Division Robert R. Kane, the designated selecting official. In October, 1975, Kaplan was selected for permanent assignment to this position. *fn11"

 After the selection was announced, plaintiff instituted an EEO action which ultimately led to his filing a formal complaint of race discrimination on January 14, 1976. *fn12" At approximately this same time, plaintiff was advised by Kaplan and Kane that his counseling duties could not "justify" a GS-12 position and that he would have to accept downgrade to a GS-11 counseling position or else a lateral transfer to a Buildings Management Specialist position which involved no counseling. *fn13" Plaintiff expressed interest in neither alternative, but was never even given the opportunity to choose between them. On June 1, 1976, after plaintiff returned to work from an emergency hospitalization, he was ordered to report to the Custodial Management Section of GSA's Buildings Services Branch where he was assigned to a custodial staffing position. *fn14" This new job, which plaintiff has performed since June of 1976, involves no counseling work or any responsibilities related to plaintiff's duties between 1969 and 1975. Rather, it appears to involve the numerical calculation and verification of staff requirements for various GSA operations. *fn15" Plaintiff admits that he has little aptitude for this type of work and that his performance in this assigned position has suffered accordingly. Indeed, the parties readily agree that despite what appears to be plaintiff's sincere efforts to meet the unaccustomed requirements of his new job, his performance has in no way resembled in quality his previous work as a counselor. *fn16" In short, he is a most unhappy man doing sub-par work in an area totally alien to his interests, his background, and his well-recognized talents.


 Plaintiff's first contention is that he was wrongfully denied the supervisory position awarded to Jerry Kaplan. He maintains that he was qualified to serve in that job, but failed to receive it only because of race discrimination. He points out that Kaplan, a white man, was temporarily detailed to the position in question for approximately one and one-half years prior to their formal competition for that position, a period far in excess of Civil Service limitations. *fn17" It is also significant, plaintiff argues, that each of the men temporarily detailed as supervisors of the other four new staff elements of the Management Operations Division were ultimately selected as permanent supervisors. *fn18" Each of those men, like Kaplan, is white. *fn19"

 On the basis of the evidence presented, the Court readily agrees with plaintiff that he was indeed qualified for the position sought. In fact, the review panel which evaluated both him and Kaplan concluded as much. *fn20" Hence, the Court finds that plaintiff established a prima facie case on this claim, whereupon the burden shifted to the defendant agency to show a legitimate, nondiscriminatory reason why plaintiff did not receive the position. See McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802-03, 36 L. Ed. 2d 668, 93 S. Ct. 1817 (1973).

 The Court finds further, though, that the defendant agency has adequately met this rebuttal burden. The evidence adduced by both sides reveals that plaintiff was certainly not more qualified than Kaplan for the position sought and according to at least two very important criteria -- labor management expertise and supervisory experience -- was apparently less qualified. *fn21" In light of this evidence, this Court cannot quarrel with the review panel evaluation of plaintiff and Kaplan as "qualified" and "highly qualified," respectively, *fn22" nor can it conclude that the selection of Kaplan over plaintiff lacked a nondiscriminatory basis.

 In essence, the crux of plaintiff's case on this promotion claim is that his competitor was afforded the opportunity to both obtain general supervisory experience and to get on an "inside track" toward the position in question through a temporary assignment to that position which was of illegal duration. *fn23" In pressing this claim, he places almost exclusive reliance upon Kaplan's illegal detail and upon the fact that this questionable personnel practice was also employed to the benefit of the "temporary" supervisors in each of the other new staff elements of the Management Operations Division. *fn24" Yet plaintiff has failed to present any evidence suggesting that this practice discriminated against him, or against others, on racial grounds. *fn25" Nor has he offered any evidence tending to prove that the reasons justifying the Kaplan selection were merely a "pretext" for such discrimination. See McDonnell Douglas Corp. v. Green, supra, at 804-05. Hence, while the Court is sympathetic to the fact that plaintiff was placed at a distinct competitive disadvantage by virtue of Kaplan's unduly long interim appointment, *fn26" it discerns no basis upon which it can view this irregularity as amounting to a Title VII violation. *fn27" Accordingly, plaintiff's promotion claim must fail.


 Separate and apart from his challenge to the Kaplan selection, plaintiff also challenges GSA's treatment of him subsequent to his initiating an EEO action in connection with his non-selection. He claims that he has been singled out by his superiors, particularly Kaplan and Kane, and treated in a manner totally unbefitting a man of his background and proven abilities. The sum and substance of the defendant agency's conduct toward him since December of 1975, he maintains, amounts to discriminatory retaliation within the meaning of 42 U.S.C. § 2000e-3(a).

 The evidence supporting this claim is substantial. Plaintiff testified that subsequent to Kaplan's selection, he initiated an EEO action wherein he challenged the agency's overall treatment of him. *fn28" He also wrote to the National Administrator of GSA, Mr. John F. Galuardi, on December 1, 1975, voicing several complaints and threatening a formal discrimination suit. *fn29" Not long thereafter, plaintiff testified, he was advised by Kaplan that he could no longer occupy a counseling position at the GS-12 level because the job assertedly could not "justify" that grade. At that time, plaintiff had been a full-time counselor for almost seven years, the last three and one-half of which as a GS-12. Plaintiff testified that he was given the choice of either continuing in his present position under the title of Equal Employment Opportunity Specialist as a downgraded GS-11 or else accepting a transfer out of the counseling field to a more traditional Buildings Management Specialist job. In the Spring of 1976, after plaintiff had steadfastly refused a downgrade, he was transferred to a custodial staffing position in which his counseling abilities and experience are not utilized. *fn30" Plaintiff's many attempts to obtain another position more suited to his background have been to no avail. *fn31"

 In its defense on this claim, GSA has adduced certain evidence which could tend to undermine plaintiff's assertions of retaliation. It has shown, for example, that even prior to his unsuccessful competition for the position now occupied by Kaplan, plaintiff sought to rectify for once and for all the inconsistency between his job description and the responsibilities which he performed. Thus, as early as in July of 1975, plaintiff made a formal request for a "desk audit" so that he could be classified as an Equal Employment Opportunity Specialist. *fn32" It was that effort on plaintiff's part, the defendant agency contends, which ultimately resulted in the personnel determination that plaintiff's counseling duties could not support a grade 12 and that he would therefore have to accept a downgrade if he wished to be an Equal Employment Opportunity Specialist. The defendant agency's position, therefore, is that plaintiff's transfer was not undertaken as a reprisal, but rather was prompted by the sterile personnel determination that the precise job position sought by plaintiff could not support his established grade. *fn33"

 Upon its careful consideration of all the evidence presented, however, the Court stands unpersuaded that GSA's treatment of plaintiff since late 1975 has been pure of any retaliatory efforts. From the totality of this evidence, the following picture emerges: Plaintiff is a man of superior abilities and dedication as a counselor whose incipient talents were recognized by his supervisors while he was laboring in an unrelated field. At the specific request of his agency, he rose to the challenge of this new profession and served it with distinction. Three years later, at a time when GSA was undoubtedly under pressure to provide equal employment opportunity services to its employees, he once again responded to his agency's call and became an integral part of its new Equal Employment Opportunity Program. *fn34" Throughout this service, though, plaintiff never really received full recognition for his work since his supervisors obtained much-needed counseling services from him while continuing his official designation as a Buildings Management Specialist. *fn35" Then, after seven years of counseling work, the last three and onehalf years of which as an equal employment opportunity counselor at grade 12, plaintiff is told that the job he has been performing at the agency's request (and, by all indications, to its substantial benefit) could no longer justify his grade level of long standing and that to maintain his grade he must accept assignment to a job which bears no logical relation to his interest, skills or experience.

 It appears to the Court, and in the absence of any persuasive evidence to the contrary the Court so finds, that this plaintiff has been effectively used by his agency when it needed him, but has now been inexcusably abused by that same agency *fn36" after alleging race discrimination. This Court simply cannot fathom why an agency would suddenly take an employee of plaintiff's demonstrated worth and place him in a position where he is of value neither to the agency nor to himself. It can draw no other conclusion than that plaintiff's treatment by GSA since late 1975 can be explained only as an inconsiderate retaliation for his efforts to seek redress for his complaints of racial discrimination. *fn37" Such treatment has been expressly proscribed by Congress *fn38" and should not be regarded lightly by the courts.


 The only matter remaining is a determination of relief appropriate to the Court's finding of discriminatory retaliation. The relevant portion of Title VII, Section 706(g), as amended, provides as follows:


If the court finds that the respondent has intentionally engaged in or is intentionally engaging in an unlawful employment practice charged in the complaint, the court may enjoin the respondent from engaging in such unlawful employment practice, and order such affirmative action as may be appropriate . . . or any other equitable relief as the court deems appropriate.

 42 U.S.C. § 2000e-5(g). As the Supreme Court has noted, this section "vested broad equitable discretion in the federal courts to 'order such affirmative action as may be appropriate . . . .'" Franks v. Bowman Transportation Co., 424 U.S. 747, 763, 47 L. Ed. 2d 444, 96 S. Ct. 1251 (1976). Such equitable relief, of course, must be carefully tailored to the circumstances presented by each case. See, e.g., Rodriguez v. East Texas Motor Freight, 505 F.2d 40, 51 (5th Cir. 1974), rev'd on other grounds, 45 U.S.L.W. 4524 (May 31, 1977); Young v. Edgcomb Steel Co., 499 F.2d 97, 98-99 (4th Cir. 1974).

 In this case, the Court finds that the plaintiff is entitled to immediate reassignment to a counseling position such as he held prior to his retaliatory transfer. *fn39" He should be allowed to resume his prior duties (or those duties currently in existence which are most nearly identical to those previously performed by plaintiff) without any loss of grade or future threat of same. Finally, this "reinstatement" should be accomplished with the maximum of dispatch and the minimum of inconvenience to the plaintiff. He is not to be further harassed.

 This Court of course has complete confidence in the ability of the defendant agency to afford plaintiff the relief to which he is entitled, particularly since it is quite obvious to the objective observer that it would be in the agency's best interest, as well as in plaintiff's, that it do so. The Court notes in this connection, however, that plaintiff has made a formal request for punitive damages *fn40" and that there is authority supporting the award of such damages in egregious cases such as this one. See Claiborne v. Illinois Central R.R., 401 F. Supp. 1022, 1023-27 (E.D. La. 1975); Tooles v. Kellogg Co., 336 F. Supp. 14, 18 (D. Nev. 1972); Gary v. Industrial Indemnity Co., 7 F.E.P. Cases 193, 196 (N.D. Cal. 1973); Dessenberg v. American Metal Forming Co., 6 F.E.P. Cases 159, 161 (N.D. Ohio 1973); United States v. Detroit Edison Co., 365 F. Supp. 87, 6 F.E.P. Cases 612, 642-43 (E.D. Mich. 1973); see also Note, Implying Punitive Damages in Employment Discrimination Cases, 9 Harv. Civ. Rights -- Civ. Lib. L. Rev. 325, 342-45 (1974); Comment, Employment Discrimination and Title VII of the Civil Rights Act of 1964, 84 Harv. L. Rev. 1109, 1259-69 (1971). *fn41" The matter of punitive damages will accordingly be held in abeyance by the Court pending the agency's prompt compliance with the judgment issued today.

 An appropriate Order will be entered. Plaintiff's counsel shall submit an application for the award of costs and attorneys' fees.

 [EDITOR'S NOTE: The following court-provided text does not appear at this cite in 446 F. Supp.]


 [NOVEMBER 18, 1977]

 Upon consideration of plaintiff's motion pursuant to Rule 59(e), Federal Rules of Civil Procedure, to amend the Court's Judgment dated July 28, 1977, the memoranda of points and authorities filed in support and opposition thereto, and the entire record herein, and for the reasons set forth in the Court's Memorandum issued this day, it is by the Court this 18th day of November, 1977,

 ORDERED that defendant and its officers and agents shall, as specified in the Court's Memorandum, immediately restore to plaintiff his lost annual and sick leave for those periods for which plaintiff submits to defendant medical certificates verifying that leave taken during such periods was in response to medical necessity; and it is further

 ORDERED that defendant and its officers and agents shall, as specified in the Court's Memorandum, immediately expunge from plaintiff's personnel file three letters of unsatisfactory performance from the Chief of the Custodial Management Section, GSA, dated August 18, 1976, November 18, 1976, and February 28, 1977.

 {F. Supp. 801contd} MEMORANDUM (November 18, 1977)

 Presently before the Court is plaintiff's motion pursuant to Rule 59(e), Federal Rules of Civil Procedure, to amend the Court's Judgment dated July 28, 1977. The Court ordered judgment for plaintiff on his retaliation claim and ordered defendant to reassign plaintiff to a counseling position and to desist from further retaliation or harassment. In its motion to amend the Court's judgment, plaintiff requests that the Court order: (a) restoration of the annual and sick leave expended by plaintiff for health problems allegedly resulting from GSA's retaliation; and (b) expungement of derogatory information placed by GSA in plaintiff's personnel file. For the reasons set forth briefly below, the Court grants plaintiff's requests for restoration of lost leave and for expungement.

 A. Restoration of Lost Annual and Sick Leave.

 Plaintiff requests restoration of leave used for three periods of hospitalization and for other, unspecified periods.1a Plaintiff intends to provide medical certificates verifying that these latter periods were in response to medical necessity. Plaintiff contends that GSA's harassment and retaliation caused him severe health problems requiring exhaustion of all of his accumulated annual and sick leave. Defendant responds that testimony at trial cannot support a finding that the stress suffered by plaintiff at his job was the proximate cause of his health difficulties.

 The Court concludes that the evidence supports the finding that plaintiff's illness was proximately caused by defendant's retaliatory actions and that the restoration of lost leave under these circumstances is a proper exercise of the court's broad discretionary power to grant relief for violations of Title VII. 42 U.S.C. § 2000e-5(g). In its Memorandum of July 28, 1977, the Court concluded that plaintiff's treatment by GSA since late 1975, specifically his downgrading to a job unrelated to his skills and experience, was in retaliation for plaintiff's seeking redress for his complaints of racial discrimination.2a Plaintiff maintains that the extraordinary job stress resulting from his downgrading and defendant's harassment caused his health problems. At trial, Dr. Birschbach testified that the stress experienced by plaintiff at work since late 1975 was in his opinion a "causative factor in producing" plaintiff's health difficulties. The doctor also testified that plaintiff could function well without the stress experienced at work after his downgrading.

 Defendant responds by emphasizing that the doctor could not conclusively state that the job stress was the sole cause of plaintiff's condition. That the doctor's conclusion was qualified in this manner is not surprising; the possibility that other causes were a factor in plaintiff's condition always exists.3a Plaintiff, however, is not required to negate every other theory of causation, see Christie v. Callahan, 75 U.S. App. D.C. 133, 124 F.2d 825, 840 (1941), and this qualification of the doctor's testimony does not detract from the doctor's opinion that job stress was a contributing cause of plaintiff's health problems. Moreover, the doctor's firm testimony was that the plaintiff could have performed his job well in the absence of the stress resulting from defendant's harassment. Considered in its entirety, the doctor's testimony, unchallenged by defendant, fully supports the finding that defendant's retaliatory actions resulting in extraordinary stress on plaintiff was the proximate cause of plaintiff's health problems requiring hospitalization and use of annual and sick leave.4a See Hicks v. United States, 167 U.S. App. D.C. 169, 511 F.2d 407, 420-21 (1975).

 As the Court stated in its Memorandum of July 28, 1977, it has broad discretionary power to grant relief appropriate to its finding of retaliation. The Supreme Court has said that "federal courts are empowered to fashion such relief as the particular circumstances of a case may require to effect restitution, making whole insofar as possible the victims of racial discrimination . . . ." Franks v. Bowman Transportation Co., 424 U.S. 747, 764, 47 L. Ed. 2d 444, 96 S. Ct. 1251 (1976). In this case the Court has found that defendant retaliated against and harassed plaintiff and that plaintiff's health problems since late 1975 were caused by this retaliation and harassment. These particular circumstances justify an order restoring leave used by plaintiff during his three hospitalizations and other periods since late 1975. Plaintiff shall be restored lost leave for those periods for which he submits to GSA medical certificates from Dr. Birschbach verifying that leave taken during such periods was in response to his medical needs.

  B. Expungement of Derogatory Information in Plaintiff's GSA Personnel File.

 Plaintiff requests expungement specifically of three letters of unsatisfactory performance given him after his downgrading and of any other derogatory information contained in GSA's files. Defendant urges that this request be denied because the letters are accurate and there is no evidence of retaliatory intent underlying the letters.

 The Court concludes that expungement of the three letters is appropriate relief under the circumstances of this case. Defendant's retaliation against plaintiff included downgrading him into a position for which he was not well-qualified.5a Plaintiff's poor performance in this position and the consequent letters from his superiors regarding his unsatisfactory performance are not disputed. But this poor performance directly resulted from defendant's wrongful placement of plaintiff into a position not suited to his interest, skills, or experience. The fact that the letters accurately criticize plaintiff's performance and do not have a retaliatory intent is irrelevant. The letters would not exist but for the retaliatory conduct of defendant. The Court already has ordered plaintiff's reassignment to a counseling position such as he held prior to his transfer to the downgraded position. Expungement of the letters criticizing plaintiff's performance after the wrongful transfer will further eliminate the injurious effects to plaintiff of defendant's discriminatory actions.

 The Court's order of expungement in this case is a proper exercise of its broad relief powers under Title VII. See Franks v. Bowman Transportation Co., supra. The Court's order also accords with the general rules for granting expungement. See, e.g., Chastain v. Kelley, 167 U.S. App. D.C. 11, 510 F.2d 1232 (1975); Paton v. LaPrade, 524 F.2d 862 (3d Cir. 1975). Under the circumstances of this case, in which the existence of the derogatory letters is the result of defendant's violation of plaintiff's statutory rights, the continuing harm to the plaintiff resulting from the letters clearly outweighs any interest GSA may have in retaining them.6a

Buy This Entire Record For $7.95

Official citation and/or docket number and footnotes (if any) for this case available with purchase.

Learn more about what you receive with purchase of this case.