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January 19, 1978

DR. ROGER PEELE, Acting Superintendent, St. Elizabeths Hospital, Plaintiff,
JOSEPH A. CALIFANO, Secretary, Department of Health, Education and Welfare, Defendant

The opinion of the court was delivered by: FLANNERY

 I. Introduction

 Plaintiff, a white male, is a medical doctor, a board-certified psychiatrist, and a board-certified mental health administrator. In July, 1974 he was appointed Assistant Superintendent of St. Elizabeths Hospital and he is currently serving in that post. Defendant is the Secretary of the Department of Health, Education and Welfare.

 This action was brought by plaintiff pursuant to Title VII of the Civil Rights Act of 1964, as amended by the Equal Employment Opportunity Act of 1972, 42 U.S.C. § 2000e-16 (1970 & Supp. V 1975). Plaintiff claims that as a result of unlawful discrimination on the basis of race, he was denied appointment as the Superintendent of St. Elizabeths Hospital in June of 1976 and therefore, he is entitled to retroactive appointment.

 On September 30, 1977, this court granted partial summary judgment for plaintiff on the question of discrimination, having found that the selection of Dr. Ulysses Watson for the position of Superintendent of St. Elizabeths in June of 1976 was tainted by considerations of Dr. Watson's race -- Dr. Watson is black. The court denied cross motions for summary judgment on the question of relief. A trial de novo was held before this court on November 28 -- December 7, 1977 on the question of whether plaintiff, having been discriminated against, is entitled to an order directing his retroactive appointment as the Superintendent of St. Elizabeths. The court must determine whether, absent the racial discrimination, plaintiff would have been appointed Superintendent of St. Elizabeths. The court determined, in the grant of partial summary judgment, that the relevant issue is the status of the candidates at the time of the discriminatory decision and therefore, events subsequent to the date of decision have not been considered.

 II. Findings of Fact

 In June of 1975 Dr. Luther Robinson, then Superintendent of St. Elizabeths, left his position for another position within the hospital. In July of 1975 Dr. Peele automatically became Acting Superintendent of St. Elizabeths when the position became vacant and he remained in that post until October 24, 1977. Dr. Peele's permanent position as Assistant Superintendent is classified as grade GS-17 and the Superintendent position is classified as grade GS-18. Plaintiff served as Acting Superintendent at grade GS-17.

 St. Elizabeths is located within the District of Columbia and is operated by the United States. Organizationally, it is under the jurisdiction of the National Institute of Mental Health (NIMH), which is within the Alcohol, Drug Abuse and Mental Health Administration (ADAMHA) of the Department of Health, Education and Welfare (HEW). St. Elizabeths is currently mandated to provide residential psychiatric care for certain federal beneficiaries and residents of the District of Columbia.

 The position of Superintendent of St. Elizabeths Hospital is unique in that St. Elizabeths is the only psychiatric hospital within HEW. Although there are other GS-18 positions in HEW, none have the unique stature, authority, or responsibility of the position of Superintendent of St. Elizabeths. There is no equivalent position in HEW.

 In the fall of 1975, Dr. Betram S. Brown, the selecting official who was the Director of NIMH, decided to fill the Superintendent's position by conducting a nationwide search for candidates. A search plan was submitted to the Civil Service Commission (CSC) and the plan was ultimately approved on January 6, 1976. In December of 1975 the agency circulated announcements and newspaper advertisements soliciting applications for the position. As part of the plan the CSC directed NIMH to develop rating criteria for a Qualifications Review Board (QRB) which would screen the candidates. Mr. James Pittman, the Executive Officer of NIMH, developed the criteria to be used by the QRB in determining the basic eligibility of the candidates. It was not intended that the criteria developed for the QRB would include every factor that the selecting official might ultimately consider. This procedure was proper and appropriate under the CSC guidelines then in effect.

 Of the ten applications received for the position, four were transmitted to the QRB for rating. The four applications referred to the panel were those of Drs. Peele, Watson, Meredith, and Simor. The QRB was composed of: Thomas F.A. Plaut, Ph.D., Assistant to the Director, NIMH; Dr. Francis N. Waldrop, Deputy Administrator, ADAMHA; and Dr. Jefferson McAlpine, Administrator, Mental Health Administration, Department of Human Resources of the District of Columbia. The QRB met on March 25, 1976 and the three members of the Board evaluated the qualifications of the candidates, their curriculum vitae, and their Standard Form 171 applications. Dr. Simor withdrew his application immediately thereafter and the three remaining candidates were certified to the selecting official as highly qualified. The composition and operation of the QRB were proper under CSC procedures then in effect. Under the procedures then approved by the CSC, the selecting official was free to choose any one of the three candidates as the new Superintendent.

 In the Spring of 1976, Dr. Brown invited various professional and community groups in the District of Columbia area to participate in the selection process. These groups were the Medical Society of St. Elizabeths, the Department of Human Resources of the District of Columbia, the Washington Psychiatric Society, the D.C. Mental Health Association and the Medical Society of the District of Columbia. He requested that these groups interview the candidates or review their qualifications and report to him on their evaluations. Dr. Brown took this action in order to: (1) ensure meaningful participation by the groups that would work closely with the new Superintendent; and (2) determine whether any of the candidates were unacceptable to any of the groups. The second issue was significant to Dr. Brown because he considered those groups to have a potential veto power over the candidates. All of the groups found the candidates highly qualified for the position and none of the groups found any of the candidates to be unacceptable. Specifically, of the five groups, three recommended Dr. Peele and two recommended Dr. Meredith.

 In addition to seeking the views of the five community groups, Dr. Brown had four officials from within the agencies of HEW interview the candidates and make evaluations and recommendations. These officials were Dr. Plaut, Dr. Waldrop, Mr. Pittman and Dr. Joseph Gallagher, Dr. Brown's top assistant for St. Elizabeths' affairs.

 After conducting interviews pursuant to Dr. Brown's request, Dr. Plaut told Dr. Brown that he preferred either of the outsiders, Dr. Meredith or Dr. Watson, to Dr. Peele. Although Dr. Plaut thought Dr. Peele was highly intelligent and extremely conscientious, he based his opinion on Dr. Peele's link to the St. Elizabeths' system, his orientation towards the problems facing the hospital, his view of the role of the courts in the areas of mental health and patients' rights, and his leadership qualities in relation to the other ...

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