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September 7, 1977


The opinion of the court was delivered by: PRATT


 Findings of Fact

 I. History of the Proceedings.

 1. This action, filed December 18, 1975, charged the Smithsonian Science Information Exchange (sometimes hereafter "SSIE" or the "Exchange") and its president, Dr. David F. Hersey (hereafter "Hersey"), with employment discrimination against blacks and other minority groups in violation of 42 U.S.C. §§ 1981 and 1983, 42 U.S.C. §§ 2000e et seq., and the Fourteenth Amendment. (Compl. para. 1).

 2. The case was brought as a class action by Laurence D. Winston, Thurmus E. King, Julian Anthony Adams, and Tyler Stevens Gates (hereafter "Winston," "King," "Adams," and "Gates"). (Compl. paras. 1, 4-7, 10).

 3. Defendants answered on February 17, 1976, and denied the essential allegations of the complaint. In particular, the defendants contended that the action was not appropriate for class action certification and that the claims, if any, of the plaintiffs were time-barred. (Ans. paras. 3-4). Thereafter the parties conducted extensive discovery.

 4. By Order dated March 23, 1977, the Court granted defendants' motion for partial summary judgment and dismissed from the case King, Adams, and Gates on the ground that their asserted claims were time-barred.

 5. On March 25, 1977, the Court issued its Order and Memorandum Opinion denying class certification.

 6. Trial commenced on June 8, 1977, and concluded on June 15, 1977. Winston called ten witnesses, including himself, and introduced 70 exhibits. The defendants called ten witnesses and introduced 53 exhibits. Although the trial dealt only with Winston's own claims of racial discrimination, he was not so limited in his proof but was allowed to introduce evidence of the alleged class discrimination as evidence to support his individual claim.

 II. The Parties.

 7. Plaintiff Laurence D. Winston, Sr. is a black male, age 33, married with three children. After graduation from high school in 1961, Winston spent four years in the United States Air Force, during which he was trained as an air policeman and commercial transportation specialist and studied psychology at the University of New Mexico. He received an honorable discharge and came to work for the Exchange on October 18, 1965, as a GS-2 file clerk. (Winston Tr. 14-16, 28).

 8. After just under nine years at the Exchange, during which he worked in the file room, the supply room, and the Office of the President, Winston was asked to resign or be fired in August 1974. From May 23, 1974 on, Winston had a pending employment discrimination complaint. He resigned on August 21, 1974. (Winston Tr. 28-29, 118-19).

 9. While at the Exchange, Winston took courses in records management at the Department of Agriculture, commercial art at Columbia Technical Institute, and was studying business administration part time at Prince George's Community College at the time of his resignation. He has been attending Prince George's continuously since 1973. (Winston Tr. 15). When he came to the Exchange, Winston had no supervisory experience and no college degree or college credits.

 10. The Smithsonian Science Information Exchange is a national repository for scientific research data. It originated in 1949 as the Medical Sciences Information Exchange, funded by six government agencies. In 1953 it became the Biosciences Information Exchange and came under the aegis of the Smithsonian Institution. It became the Science Information Exchange in 1960, and in 1971 was incorporated as a private non-profit corporation under the laws of the District of Columbia and renamed the Smithsonian Science Information Exchange. (Winston Tr. 17; Hersey Tr. 440-41; DX 37).

 11. The Exchange appears as a line item on the annual Smithsonian Institution federal budget, from which it receives approximately 60% of its revenues. The remaining 40% is derived from user fees, of which the majority comes from agencies, grants or contracts. (Hersey Tr. 440, 517-19; DX 37; PX 63 *fn1" ).

 12. Since its inception, SSIE has existed as a private corporation comprised of private-roll employees. It presently consists of just under 100 employees, a total which was just under 150 in 1964 and has gradually decreased over the years since 1964. (DX 9-11).

 13. Accompanying this development has been the increasingly advanced automation of the Exchange's data-processing operations. (Winston Tr. 18-23; PX 1-6; DX 35-37).

  14. Approximately one third of the Exchange's employees are research data analysts trained in various scientific disciplines. The remainder are non-professional employees in the Data Processing Division and the Office of the President. Before incorporation in 1971 the Office of the President was the Office of the Director. Before 1968 the Data Processing Division was known as the Operations Division and other related units. (Winston Tr. 18-24; DX 9-11).

 15. The employees in the Data Processing Division and Office of the President, and their predecessors, are the so-called "nonprofessional" employees referred to in this proceeding. (Winston Tr. 20; Compl. para. 12).

 16. The majority of nonprofessionals from 1964 to the present have been employed in the Data Processing Division, as it is now known, which has generally been divided into four or five branches, and the larger branches (such as Reports, Registry, Input Services) have generally been divided into two or more sections. (DX 8-10).

 17. Defendant Hersey, since January 1972, has been the President of SSIE.

 III. The Evidence.

 18. In September 1965, Winston applied to SSIE for employment as a file clerk, having been referred to SSIE by the United States Employment Service. (Tr. 16; Winston Dep. 509).

 19. On or about October 18, 1965, Winston was hired as a file clerk at grade 2, step 1 -- the position for which he applied. (Tr. 23, 28; Winston Dep. 509). His starting salary was $3,680 per year. (DX 53 #213).

 20. His employment by SSIE was Winston's first significant full-time civilian employment. Earlier he had been employed by National Car Rental Company from about August 5 to August 30, 1965, following his discharge from the Air Force.

 21. Upon his employment by SSIE Winston was assigned to the file section under the supervision of Zeta Offutt *fn2" (hereinafter Offutt) where he remained until about January 1966, at which time he was transferred to the supply room. (Tr. 23-24, 27, 104; Winston Dep. 512).

 22. Effective October 23, 1966, Winston received a step increase from grade 2/1 to 2/2, increasing his salary from $3,925 to $4,058. (DX 53 #213).

 23. Effective November 6, 1966, following a request from Evelyn N. Roll, the officer responsible for processing papers for personnel action (hereafter "Roll"), Winston received a promotion to grade 3, step 2, with an accompanying salary increase from $4,058 to $4,412 per year. (Tr. 28-29; PX 7-8; DX 53 #213).

 24. Effective November 5, 1967, Winston received a within-grade step increase from 3/2 to 3/3, increasing his yearly salary from $4,615 to $4,764. (DX 53 #213).

 25. Effective March 24, 1968, following another request by Roll, Winston received a promotion to grade 4, step 2, increasing his yearly salary from $4,764 to $5,161. (PX 9-10; DX 53 #213).

 26. During the fall of 1968 a number of SSIE employees, including Winston, received notices that their employment by SSIE would be terminated pursuant to a reduction in force necessitated by a lack of funds. (Tr. 31). On about December 9, 1968, Winston's termination notice was rescinded, and he continued in SSIE's employ without any loss or reduction in pay. (Tr. 31; DX 53 #213). It was at about this time that Winston was assigned to the front office to assist with SSIE's new charge system under the supervision of Vincent Verfuerth (hereafter "Verfuerth"), SSIE's Executive Officer. (Tr. 32, 41).

 27. While under the supervision of Verfuerth, Winston assisted in the preparation of an "operations manual" concerning SSIE's user charge system. (Tr. 32). Most of the documents contained in the manual were not authored by Winston. (Tr. 126). Using his graphic art skills, Winston prepared diagrams of the charge system from sketches provided by others. (Tr. 123-25).

 28. Effective March 23, 1969, Winston received a within-grade step increase from 4/2 to 4/3, increasing his yearly salary from $5,316 to $5,487. (DX 53 #213).

 29. Effective May 18, 1969, Winston was promoted to reports clerk, grade 5, step 2, increasing his annual salary to $5,924. (Tr. 37; PX 11; DX 53 #213).

 30. Effective May 17, 1970, Winston received a within-grade step increase from 5/2 to 5/3, increasing his annual salary from $6,766 to $6,984. (DX 53 #213).

 31. On October 4, 1970, at the recommendation of Verfuerth, Winston received a within-grade quality increase from 5/3 to 5/4, increasing his annual salary to $7,202. (PX 14; DX 53 #213).

 32. During 1969 and 1970 Winston had expressed his belief to Verfuerth and Roll that his job title was inaccurate. (Tr. 41-43).

 33. During about the same period Winston had conversations with Hersey concerning SSIE's shift to a user charge system, whether Hersey anticipated that SSIE would grow and increase its business, and Winston's chances for growth and additional responsibilities. (Tr. 444). Hersey's response was that while it was difficult to tell how fast SSIE would grow, he was confident that it would and that to the extent SSIE grew the employees who performed well would have an opportunity to grow with it. (Tr. 444-45, 486). Hersey told Winston he hoped Winston could be part of SSIE's growth. (Tr. 129-31).

 34. From the time Hersey joined SSIE in 1961 to the present, Hersey has adhered to an open-door policy -- that is, he has made it clear to SSIE's employees that they were free to see him at any time about anything, whether it be about a personal or a business matter. (Tr. 135-36, 445, 525).

 35. When in January 1972 Hersey became President of SSIE, he initiated monthly staff meetings which were an encouragement to Winston and other SSIE employees.

 36. At about the same time, Winston participated in and delivered to Hersey an anonymous memorandum dated January 24, 1972, which inquired about organizational and personnel matters at SSIE. (Tr. 51-54; PX 20).

 37. Effective May 14, 1972, Winston received a within-grade step increase from 5/4 to 5/5, increasing his yearly salary from $8,051 to $8,295. (DX 53 #213).

 38. In June 1972, following discussions with Smithsonian personnel, Winston prepared a position description which he believed accurately reflected his job. (Tr. 46-48; PX 16).

 39. It was during early 1972 that Winston had first discussed with Hersey his belief that his job title was inaccurate. (Tr. 49).

 40. On the morning of August 16, 1972, upon arriving at his office, Hersey found in the middle of his desk a memorandum addressed to him from "SSIE Employees" (hereafter the "August 16th memorandum"). (Tr. 446; PX 21). The memorandum, which had been prepared by Winston and six or seven other black employees (Tr. 57), was delivered to Hersey's desk and to the desks of each of SSIE's employees by Winston before working hours on August 16th. (Tr. 58, 135).

 41. The August 16th memorandum, which also was attached as a part of the complaint in this case, made serious charges of racial discrimination against SSIE, characterizing unidentified SSIE representatives as racial bigots. (Tr. 133-37; PX 21). At no time -- including the time the memorandum was prepared through the trial of this case -- could Winston identify those persons which the August 16th memorandum refers to as racist bigots. (Tr. 133-37).

 42. Of the seven black employees identified by Winston as having assisted in the preparation of the August 16th memorandum, only one, Elbert Corbett, was called as a witness. (Pl's Ans. to Int. 11(b) of Defs' First Set).

  43. Corbett testified that during the entire period of his employment at SSIE from 1963 (Tr. 254) no one was fired for bringing to management's attention grievances such as those expressed in the August 16th memorandum. (Tr. 282). Corbett himself received two promotions subsequent to the August 16th memorandum, the second promotion (to supervisory computer operator) occurring in December 1973. (Tr. 305-06). Corbett earlier, in 1969, had returned to SSIE from the Army, at which time Paul Gallucci selected him to be a computer operator, for which position he was trained by SSIE. (Tr. 304).

 44. Upon receipt of the August 16th memorandum Hersey did three things:

 (1) Because he was irritated by what he believed to be untrue accusations in the memorandum and because the manner in which the memorandum was brought to his attention was not in accord with his open-door policy, he began removing the memorandum from the desks near his office. (Tr. 447-48). He immediately replaced the memorandum on advice of one of SSIE's senior scientists. (Tr. 447).

 (2) He held a staff meeting of all employees at which he announced that his door was always open and invited anyone who wished to to meet with him about any problem they had. (Tr. 58-59).

 (3) He sought the advice of Archie Grimmett (hereafter "Grimmett") of the Smithsonian EEO office as to how to deal with the memorandum and the issues raised in it. (Tr. 448-49).

 45. Shortly after his meeting with Grimmett and pursuant to Winston's request, Hersey had a meeting with Winston and other black employees at which the August 16th memorandum and the matters raised in it were discussed. (Tr. 59-62, 138, 449-50). Also present were Smithsonian's personnel director and Grimmett. (Tr. 60, 137, 330). At this meeting Winston stated that calling him "Larry" rather than Mr. Winston was an example of discrimination by Hersey. (Tr. 450). A number of the employees present characterized Winston's remark as ridiculous, stating that they preferred being addressed by their first names. (Tr. 450).

 46. As a result of this meeting:

 (1) SSIE agreed to establish an upward mobility program if funds were available. (Tr. 330-31).

 (2) An affirmative action plan was prepared for SSIE and posted. (Tr. 62, 132, 331-32).

 (3) SSIE appointed an EEO officer. (Tr. 331-32).

 47. Hersey did not learn that Winston had participated in the preparation of the August 16th memorandum until after the institution of the present litigation. (Tr. 449).

 48. In the fall of 1972, Hersey transferred that part of SSIE's operations which dealt with the collection of user income from Verfuerth to David W. Lakamp (hereinafter "Lakamp"), while at the same time giving Verfuerth additional responsibilities in connection with the procurement of input from federal agencies. (Tr. 451). Because Winston had been assisting Verfuerth in the collection of user income, the transfer of this operation to Lakamp meant that the supervision of Winston also was transferred from Verfuerth to Lakamp. (Tr. 451-52; 624).

 49. This transfer of functions to Lakamp was based upon Hersey's decision that the responsibility for the collection of user income should be vested in SSIE's chief financial officer, who at that time was Lakamp. (Tr. 451). While the effect of this transfer of functions was to place Winston under Lakamp's supervision, Hersey's decision was solely a business judgment and was not racially motivated nor was the decision in any way influenced by Winston's opposition to alleged discriminatory practices. (Tr. 462).

 50. The responsibility for Winston's supervision resided in Lakamp from the fall of 1972 until Winston left the employ of SSIE. (Tr. 624-25; 667). Winston was under Lakamp's direct supervision until May 1974. (Tr. 625). From May 1974 until Winston left SSIE, Lakamp was familiar with Winston's activities. (Tr. 625).

 51. In the fall of 1972 Lakamp had an initial meeting with Winston concerning the functions he was performing and the guidelines for Lakamp's supervision and evaluation of him. (Tr. 626-28; 667-68). At this meeting Lakamp told Winston:

 (1) The critical factor in Lakamp's evaluation of him would be that Winston's responsibilities be carried out efficiently and accurately with a minimum of supervision. (Tr. 627; DX 2, p. 1).

 (2) He would recommend without question that Winston receive a promotion and a new job description with the title customer services coordinator which Winston had been seeking from his former supervisor. (Tr. 627-28; DX 2, p. 1).

 (3) To the extent possible, those parts of Winston's responsibilities which were largely clerical in nature would be removed and replaced with larger responsibilities designed to lead to opportunities for formal training and further promotion. (Tr. 627-28; DX 2, p. 1).

 When Winston expressed concern at this meeting about his work reputation at SSIE, Lakamp told him that as far as he was concerned they were starting with a clean slate. (Tr. 627).

 52. The guidelines for the supervision and evaluation of Winston which Lakamp set forth in his initial meeting with Winston were established in consultation with him. (Tr. 627-28; DX 2, p. 1).

 53. On about October 11, 1972, Lakamp recommended that Winston be promoted to a grade 6, step 4, increasing his yearly salary to $8,969, with a new job description and the title customer services coordinator. (Tr. 628; PX 25B). This is the promotion and job description which Lakamp and Winston had previously discussed and which Winston had requested. (Tr. 627-28; DX 2, p. 1).

 54. This job description and promotion was reviewed with Winston (DX 2, p. 1), approved by Hersey in October or November 1972 (Tr. 450-51; PX 25B), and became effective December 24, 1972. (DX 2, p. 1, DX 53 #213). Hersey and Lakamp told Winston that if he performed his current duties satisfactorily there was an opportunity for him to grow at SSIE. (Tr. 476-77).

 55. Thereafter, the following clerical functions for which Winston was responsible (PX 25B) were, over a period of time, either removed or largely compensated for by providing additional part-time administrative and clerical assistance in:

 (1) Logging requests out of SSIE.

 (2) Packaging out-going requests in SSIE search packages.

 (3) Typing invoices and address labels.

 (4) Maintaining customer files. (DX 2, p. 1).

 Concurrently, new responsibilities were given to Winston (PX 25B; DX 2, p. 2), and funds were set aside for a training program for Winston. (DX 2, p. 2). Winston had first asked for special training in August 1972. (Tr. 143-44).

 56. At the time Lakamp became Winston's supervisor and recommended him for promotion, he did not associate Winston with any complaints of racial discrimination at SSIE. (Tr. 628-29). Lakamp had seen the August 16th memorandum to Hersey, but it had gone completely out of his mind by the time he became Winston's supervisor and recommended him for promotion. (Tr. 628-30). There was no connection in Lakamp's mind between the August 16th memorandum and Winston, and Lakamp never associated the two until this litigation began. (Tr. 668).

 57. On numerous occasions during the period from the end of 1972 to December 1973 Lakamp met with Winston to counsel him concerning his job performance. (Tr. 631; DX 2, p. 3). These meetings were precipitated by complaints from staff people about Winston's job performance. (Tr. 631). For example, Lakamp received complaints from scientists that Winston either could not be found or was not responding to their particular needs. (Tr. 631-32).

  58. On more than two occasions when Lakamp was in discussion with Winston during this period (Tr. 631-32; DX 2, p. 2) he told Winston that:

 (1) Winston should avoid taking excessive advantage of the freedom with which he operated, particularly with respect to budgeting his time, in order to make certain that his responsibilities were being fully met. (Tr. 145-46, 632; DX 2, p. 2).

 (2) Winston should exercise greater caution in his work because his errors were creating problems for himself and others at SSIE and reflected poorly on SSIE. (Tr. 146, 632; DX 2, p. 2).

 (3) Winston should plan his time so he could improve the rate at which he performed his routine duties because the rate at which he was actually performing them did not allow an opportunity for him to take on the additional responsibilities that were originally planned for him. (Tr. 147, 632; DX 2, p. 2).

 (4) Winston should be more judicious about providing nonroutine information to people outside SSIE (such as customers) because the information given was sometimes erroneous. (Tr. 147, 632-33; DX 2, p. 3).

 Winston's response to this counselling was that Lakamp did not understand the complexity of his assignments, that he was overworked and would not have time to take on the additional responsibilities which Lakamp had planned for him, and that he needed a full-time assistant to help him carry out his present duties. (Tr. 633; DX 2, p. 2).

 59. During this same period from the end of 1972 to December 1973 Lakamp observed Winston's work performance. (Tr. 633-34). He observed that Winston was frequently away from his desk (Tr. 634), that he irritated the people assigned to help him with clerical tasks by insisting on a need for assistance with tasks he preferred not to do at a time when he had little else to occupy his time (Tr. 147-49, 634; DX 2, p. 3), and that when assistance was provided to him he would frequently attempt to supervise those people helping him when no supervision was necessary. (Tr. 634). Lakamp advised Winston that his judgment and his ability to manage his own time effectively were of sufficiently poor quality that it was considered unlikely that Winston would be able to perform well in the role of a supervisor. (Tr. 148-49; DX 2, p. 3).

 60. During 1973 Lakamp advised Hersey of his dissatisfaction with Winston's job performance. At the same time Winston was advising Hersey of his belief that he did not have enough time to perform the duties he was responsible for. (Tr. 452-53).

 61. Lakamp from time to time sought help from SSIE employees to assist Winston in the performance of his duties on a temporary basis. (Tr. 630).

 62. During this year of counselling Lakamp had removed certain of Winston's responsibilities, particularly time-consuming clerical functions, to allow him additional time to perform his full range of responsibilities and to assume new responsibilities. (Tr. 634, 687; DX 2, p. 2). 63. Throughout the period that Lakamp was responsible for the supervision of Winston, Winston was given substantial assistance in performing his job responsibilities. (Tr. 348, 350-53, 361-62, 371, 453-54, 472-73, 481-82, 531-32, 534, 541-42, 709; DX 8). The figures set forth below show the total number of SSIE invoices monthly for the period July 1971 through August 1974 and the number of those invoices which bear Winston's initials as the preparer versus, under the column captioned "other," the number of invoices bearing either no initials or the initials of other SSIE employees such as Matthews, VanDertholen, William Thomas, Kirlew, Banks, Jones and others. (Tr. 543-46; DX 8). Date Winston Other Total 7/71 1 128 129 8/71 40 57 97 9/71 82 21 103 10/71 87 41 128 1/72 77 121 198 2/72 132 79 211 3/72 126 41 167 4/72 117 62 179 5/72 113 40 153 6/72 65 40 105 7/72 53 98 151 8/72 56 79 135 9/72 26 110 136 10/72 7 165 172 11/72 9 156 165 12/72 37 113 150 1/73 13 110 123 2/73 100 83 183 3/73 107 60 167 4/73 65 76 141 5/73 66 146 212 6/73 40 136 176 7/73 39 167 206 8/73 60 182 242 9/73 80 176 256 10/73 44 240 284 11/73 30 313 343 12/73 32 206 238 1/74 20 295 315 2/74 17 281 298 3/74 3 284 287 4/74 0 258 258 5/74 0 277 277 6/74 0 214 214 7/74 0 137 137 8/74 0 30 30


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