The opinion of the court was delivered by: RICHEY
FINDINGS OF FACT AND CONCLUSIONS OF LAW
The above-entitled cause came on for trial before the Court, sitting without a jury, 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, which gave federal employees in executive agencies and other named agencies and departments a cause of action for discrimination in all personnel actions affecting such employees on account of race, color, religion, sex, or national origin. The Act also gave federal employees a cause of action for retaliatory action by employers because of the employees' active opposition to defendant's unlawful employment practices.
The plaintiff presented his entire case in chief on January 23-24, 1978. The defendant did Not move to dismiss, pursuant to Fed.R.Civ.P. 41(b), admitting at closing argument that the plaintiff had proved a Prima facie case of discrimination. Both parties having stipulated before trial to admit the entire administrative record into evidence, the trial was concluded on January 26, 1978. Upon consideration thereof, and the testimony and exhibits received in evidence, including the arguments of counsel for the parties, the Court, this 31st day of January, 1978, makes the following findings of fact and conclusions of law as required by Fed.R.Civ.P. 52(a).
1. Plaintiff Ike C. Mallard is a 48 year old, black male, residing at 1213 Emerson Street N.E., Washington, D.C. 20017.
3. Plaintiff was promoted on November 1, 1970, to GS-802-9, Engineering Technician, in the Physical Standards Branch (Section 54-Optics), Eastern Standards Laboratory (ESA-52), Metrology Department (ESA-5), NAVWESA.
4. On September 16, 1973, plaintiff was promoted to GS-802-11, Engineering Technician, in the Physical Standards Branch (Section 54), Eastern Standards Laboratory (ESA-53), Metrology Department (ESA-5), NAVWESA.
5. Plaintiff was promoted to Senior Engineering Technician GS-802-12 on February 13, 1977.
6. Plaintiff has received satisfactory ratings for his performance each year since 1970.
7. Plaintiff has been responsible for calibrating all types of optical instruments since 1970.
8. Plaintiff was appointed to the NAVWESA Equal Employment Opportunity (EEO) Committee prior to 1975.
9. Plaintiff acted as Chairman of the NAVWESA EEO Committee prior to 1975.
10. Plaintiff was appointed an Equal Employment Opportunity Counsellor on June 28, 1975.
1. The defendant agency is the United States Department of the Navy. The specific organizational units involved are the Naval Weapons Engineering Support Activity (NAVWESA), and NAVWESA's sub-units, the Metrology Department (ESA-5), Eastern Standards Laboratory (ESA-53), and the Physical Standards Branch.
2. At all times relevant to this complaint plaintiff was supervised by Jack Fath (white male) GS-830-13, head Physical Standards Branch; William J. Johnson (white male) Supervisory Engineering Technician GS-12; David B. Spangenberg (white male), Supervisory Mechanical Engineer, GS-802-14; and head of the Eastern Standards Laboratory Division (ESA-53); Joseph P. Fincutter (white male), GS-830-15, head Metrology Department ESA-5; and James C. Paxton, GS-801-15, Technical Director, NAVWESA. At all times relevant to this complaint, plaintiff knew and/or worked with Earl Morris (white male) Supervisory Engineering Technician GS-12.
II. EMPLOYMENT STRUCTURE AT NAVWESA
1. As of the date defendant agency requested a GS-802-12, Senior Technician, position be created, in the Physical Standards Branch, Eastern Standards Laboratory (ESA-53), Metrology Department (ESA-5) NAVWESA (February 21, 1975), minority males were "obviously underrepresented" in NAVWESA, as defined by internal Department of Navy regulations. On April 3, 1975, the NAVWESA Equal Employment Opportunity Policy and Program Report stated:
SUMMARY OF ASSESSMENTS OF THE EEO SITUATION
. . . The first area of concern is the apparent lack of minority men within the present overall work force (total 28, or 4.6%) which is definitely not commensurate with their population in the recruitment area.
This same report states that of 55 GS-802 engineering technicians only 5 (9%) are black. It further required that because of underrepresentation of minorities (and women) in grades GS-9-15 in NAVWESA every effort will be made to increase minorities in grades 9-12.
2. On August 30, 1975, the date this complaint arose at the administrative level NAVWESA, ESA-5 and ESA-53 employed the minority personnel as displayed on Chart 1.
3. In 1974 and 1975 blacks in NAVWESA received 4.2% And 1.6% Respectively of all promotions at ...