Dr. Brown also stated that he believed that Dr. Watson would fully support the policies of NIMH, ADAMHA, and HEW with the necessary thoughtfulness and vigor. It should also be noted, however, that in its grant of summary judgment for the plaintiff on the issue of racial discrimination, this court found that the selecting official improperly considered race as a factor in his initial selection of Dr. Watson.
As to the other candidate, Dr. Brown was very favorably impressed by Dr. Meredith. Dr. Brown found that Dr. Meredith had a broad and diverse range of experience in both public psychiatry and mental hospital administration. Dr. Meredith, in Dr. Brown's view, was a strong and inspiring leader who had demonstrated his commitment to out-patient community care in his innovative management of a large state hospital in Colorado. Dr. Brown's view was confirmed by Dr. Meredith's supervisors in the state of Colorado. Dr. Brown found that Dr. Meredith, like Dr. Watson, was strongly committed to aggressive and wellbalanced research at St. Elizabeths. Dr. Brown also was impressed by Dr. Meredith's innovative ideas for dealing with the problems of the hospital including those involving accreditation. Dr. Brown saw Dr. Meredith as a talented, articulate, and experienced psychiatrist and mental health administrator of proven ability who could bring strong leadership to St. Elizabeths. Dr. Brown believed Dr. Meredith was willing to support the policies of NIMH, ADAMHA, and HEW and those organizations' goals for the hospital. Dr. Brown's views were confirmed not only by Dr. Meredith's supervisors in Colorado, but also by the views of the senior staff at NIMH who interviewed him.
The court recognizes that a selection process of this type involves many decisions over the course of a considerable amount of time. It seems apparent, however, that Dr. Brown made his selection of Dr. Watson sometime on the 10th of June, 1976, after all recommendations regarding the candidates were received and considered. It is apparent from the testimony of both Dr. Brown and Dr. Plaut that Dr. Brown considered, at the same time he selected Dr. Watson, a second choice in case there was any problems with the Watson appointment. This also was done on June 10, 1976. Dr. Plaut and Dr. Brown recognized the need for a second choice because of a series of problems in the selection of high level officials mainly due to the competition for professionals of high competence. At the time Dr. Brown selected Dr. Watson for the superintendency, Dr. Meredith was his second choice. The decision to select Dr. Meredith as a second choice was entirely consistent with the advice Dr. Brown had received from within NIMH and ADAMHA as well as from the community groups.
The evidence does not indicate that Dr. Watson would have been Dr. Brown's choice as Superintendent if his race had not been considered. Although Dr. Brown stated that he would have chosen Dr. Watson even if he had been white, this court is of the opinion that race was the predominant factor in his selection, and that the alleged reasons for Dr. Watson's appointment asserted by the defendant were merely a pretext for discrimination. It is apparent, however, that if Dr. Watson had not been selected, Dr. Brown would have chosen Dr. Meredith on the 10th of June, 1976. Thus, Dr. Peele would not have been selected as the new Superintendent even if Dr. Watson's race had not been a factor in Dr. Brown's decision. The government has carried its burden of proof by presenting clear and convincing evidence that Dr. Peele would not have received the appointment even if there had been no discrimination. In sustaining his burden, the defendant proved by clear and convincing evidence that but for the discrimination, Dr. Meredith, not Dr. Peele, would have received the appointment. The defendant did not prove by clear and convincing evidence that Dr. Watson still would have received the appointment but for the racial discrimination.
Plaintiff's evidence supported a finding that Dr. Peele was a highly qualified candidate. This fact, however, was fully recognized by Dr. Brown and was never contested by the defendant. The plaintiff also proved he had the support of the senior staff at St. Elizabeths. Dr. Brown logically expected this to be the case, however, and stated that he would have been shocked if it were not so. Significantly, plaintiff offered no evidence inconsistent with Dr. Brown's testimony and that of the other NIMH officials that Dr. Peele's status as an insider, his policy disagreements with NIMH and Dr. Brown, and his lack of broad administrative experience rendered his impressive qualifications inferior, in the selecting official's opinion, to those of Dr. Meredith. The majority of the testimonial evidence offered by the plaintiff was not probative of the relative qualifications of the candidates. Members of the senior staff of the hospital who testified admittedly did not know the qualifications of either Dr. Meredith or Dr. Watson and thus did not, and could not, compare them to Dr. Peele. Dr. Peele also agreed that Dr. Meredith was qualified and worthy of being on the highly qualified list.
The plaintiff did offer the testimony of representatives of the outside groups asked to review the qualifications of the candidates by Dr. Brown. These witnesses, however, saw all of the candidates they interviewed as being fully qualified and did not state to Dr. Brown that any of the candidates would be unacceptable. In fact, two of the groups recommended Dr. Meredith. Although three groups recommended Dr. Peele for the superintendency to Dr. Brown, Dr. Brown reasonably expected this result. In Dr. Brown's mind, the critical factor in the recommendations was that none of the groups vetoed any of the three candidates.
Dr. Brown did state to senior staff at St. Elizabeths that lack of ability on the part of Dr. Peele did not cause the selection of Dr. Watson. These statements were reasonable under the circumstances and were not inconsistent with Dr. Brown's testimony concerning his opinion on the need for an outsider and the relatively superior qualities of Drs. Watson and Meredith. Dr. Brown's statements to Dr. Peele concerning Dr. Watson's selection also are consistent with his testimony. The court recognizes the fact that Dr. Peele was still to serve as Assistant Superintendent. In Dr. Brown's view, which was entirely reasonable, nothing could be gained by disparaging Dr. Peele, particularly because Dr. Peele, Dr. Watson, Dr. Brown, and the senior staff would have to work together after the selection. Thus, Dr. Brown spoke of Dr. Watson's strong points to both plaintiff and the senior staff.
III. Conclusions of Law
This court has jurisdiction over the matter pursuant to Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. § 2000e-16(c) (1970 & Supp. V 1975). Section 2000e-16 is the exclusive remedy for federal employees complaining of employment discrimination. Brown v. GSA, 425 U.S. 820, 96 S. Ct. 1961, 48 L. Ed. 2d 402 (1976). Once discrimination has been found, as it has in this case by partial summary judgment for the plaintiff, see Peele v. Califano, 29 Fair Empl. Prac. Cas. (BNA) 1104 No. 77-269 (D.D.C. September 30, 1977) the question of relief is governed by Day v. Mathews, 174 U.S. App. D.C. 231, 530 F.2d 1083 (D.C. Cir. 1976).
Whether or not a victim of employment discrimination may receive back pay and retroactive appointment is determined by applying the "but for" test. The United States Court of Appeals for the District of Columbia Circuit articulated the test by interpreting 42 U.S.C. § 2000e-5(g) (Supp. V 1975)
The statute [ 42 U.S.C. § 2000e-5(g)] makes it clear that these forms of relief [retroactive promotion and back pay] are available only where the employee would have received the promotion had he not been the victim of discrimination.
Day v. Mathews, supra, at 1085 (footnote omitted). The court further held that the employer "bears the burden of proof on this issue . . . he must prove by clear and convincing evidence that [the plaintiff's] qualifications were such that he would not in any event have been selected." 530 F.2d at 1085.
The application and review process in this case was correct and proper and Dr. Brown was free to select any one of the three candidates certified by the QRB as highly qualified. The court also has found that Dr. Brown's consideration of the need for an outsider and his analysis of the policy views, leadership styles, personalities, and past records of the candidates were entirely proper under the circumstances and were considered so by the CSC. Using a proper process of selection, Dr. Brown ranked the candidates in his own mind at the time of his selection in the following order: Watson, Meredith, Peele. Therefore, assuming that Dr. Watson would not have been the selectee but for his race, Dr. Brown would have selected Dr. Meredith, a white, rather than Dr. Peele, the white plaintiff. Defendant has met his burden of showing by clear and convincing evidence that even but for discrimination, plaintiff would not have been selected for the position of Superintendent of St. Elizabeths. Plaintiff's evidence did not establish that the nondiscriminatory reasons articulated by Dr. Brown for plaintiff's failure to obtain the position were in fact a pretext for racial discrimination. Plaintiff established that the reasons were a pretext as to Dr. Watson, but he did not do so as to Dr. Meredith who also was white.
Thus, the court cannot award to plaintiff, as part of the relief due him as a prevailing party under Title VII, either a retroactive appointment to the superintendency or commensurate back pay and benefits. See Day v. Mathews, 174 U.S. App. D.C. 231, 530 F.2d 1083, 1085 (D.C. Cir. 1976); Rogers v. EEOC, 179 U.S. App. D.C. 270, 551 F.2d 456, 457 (D.C. Cir. 1977). [EDITOR'S NOTE: The following court-provided text does not appear at this cite in 447 F. Supp.]
Upon consideration of the evidence adduced at trial, the memoranda submitted by the parties, proposed findings of facts and conclusions of law submitted by the parties, and the entire record herein, for the reasons set forth in the accompanying findings of fact and conclusions of law, it is by the court, this 19th day of January, 1978,
ORDERED, ADJUDGED and DECREED that judgment herein be entered on behalf of the plaintiff; and it is further
ORDERED, ADJUDGED and DECREED that although the plaintiff was the victim of racial discrimination in violation of Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. §§ 2000e et seq., the plaintiff is not entitled to the relief provided for in Title VII of the Act, as amended.