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September 28, 1978

DAVID J. MASON, Plaintiff,
W. GRAHAM CLAYTOR, JR., Secretary of the Navy, ALAN K. CAMPBELL, Chairman, U.S. Civil Service Commission, and HENRY J. BRODERICK, Defendants.

The opinion of the court was delivered by: SIRICA


This action is before the Court on defendants' motion to dismiss, or in the alternative, for summary judgment, and on plaintiff's motion for partial summary judgment. There are no material facts which are the subject of genuine dispute.

 The plaintiff, David J. Mason, is a GS-15 civilian employee of the Department of the Navy, where he is head of the Long-Range Planning Branch of the Naval Air Systems Command (NAVAIR). In 1975, Mr. Mason was named in an informal agency complaint as one of several persons who had discriminated against a female NAVAIR employee on account of her sex. Eventually, the complaint having been processed through the full range of agency Title VII procedures, the Navy Department rendered a final decision pursuant to 5 C.F.R. § 713.221. The decision, issued on behalf of the Secretary of the Navy by the vice-chairman of the Navy's Employee Appeals Review Board (EARB), found that the complainant had been discriminated against on account of her sex and named Mr. Mason as the discriminator.

 In this action Mason's basic claim is that Civil Service Commission Regulations afforded him only extremely limited rights of participation in the proceedings leading to the final agency decision which found him to have been a discriminator, and that he has therefore been deprived of liberty and property without due process of law in violation of the fifth amendment to the Constitution. The Secretary of the Navy and the Chairman of the Civil Service Commission are named as defendants in their official capacities. The EARB official who signed the final agency decision is sued individually for damages in the amount of $ 500,000. Plaintiff also seeks an order expunging the findings of his discrimination and all references to him as a discriminator from Navy records, retroactively promoting him to a GS-16 position, and requiring the Civil Service Commission to establish procedures for the full participation of alleged discriminating officials in agency discrimination hearings.

 I. Background Facts.

 The 1975 complaint alleged that Mason discriminated against one Diana Gutmann, an employee under his supervision, in connection with her application for promotion to a GS-9 position in NAVAIR. Following a preliminary investigation of the complaint, NAVAIR issued a "letter of requirement" to Mason and another supervisor named in the Gutmann complaint. The issuance of the letter is characterized by the defendants as "an informal disciplinary action." The brief letter alluded to a "perception of bias" within the command against females without college degrees. The letter noted the importance of correcting such perceptions and instructed: "Please provide a plan of action that is aimed at correcting this perception." NAVAIR also cancelled the proposed job selection involved in the Gutmann complaint, and directed that the selection process begin again, utilizing a selection board without the participation of persons, including Mr. Mason, who had been involved previously.

 The hearing examiner issued a recommended decision of no discrimination on account of sex on June 10, 1976. The decision was then forwarded to the Secretary of the Navy for a final agency decision pursuant to 5 C.F.R. § 713.221, which provides, in pertinent part:

(a) The head of the agency, or his designee, shall make the decision of the agency on a complaint based on information in the complaint file. . . .
(2) When there has been a hearing on the complaint, the decision letter shall transmit a copy of the findings, analysis, and recommended decision of the complaints examiner under section 713.218(g) and a copy of the hearing record. The decision of the agency shall adopt, reject or modify the decision recommended by the complaints examiner. If the decision is to reject or modify the recommended decision, the decision letter shall set forth the specific reasons in detail for rejection or modification.

 The EARB, as the Secretary's designee, then reviewed the record and, over the signature of defendant Broderick, issued the final agency decision on the Gutmann complaint on August 27, 1976. The decision was signed by Broderick in his capacity as acting chairman of the EARB. It agreed with the recommended decision as to all alleged discriminating officials except Mr. Mason. With regard to him, the final decision rejected the examiner's decision, finding that Ms. Gutmann had not been given full and fair consideration for the position in question. After analyzing the central facts in the hearing record, the decision concludes that sex had been a factor in Mason's consideration of Gutmann for the position. *fn2" The decision also noted that "we concur" with the issuance of the letter of requirement to Mason following the initial investigation of the complaint.

 Defendant Broderick, again acting on behalf of the Secretary of the Navy, forwarded the final decision to the NAVAIR Commander together with a memo which stated:

a. In the event the position is filled, ensure that a board is established to reevaluate the original candidates without Mr. Mason's involvement; a supervisory appraisal is completed on Ms. Gutmann by Mr. Mason and reviewed by a higher supervisory official; and she is given full and impartial consideration along with other ...

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