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February 15, 1980


The opinion of the court was delivered by: GREEN


This action is brought by plaintiff, George F. Sullivan, Jr., a 42 year old black male, for redress of alleged discrimination in Government employment, based on "race, color and sex" under Title VII of the Civil Rights Act of 1964, 42 U.S.C. §§ 2000e et seq., as amended, the fifth amendment to the Constitution of the United States and the regulations of the Library of Congress. Plaintiff was involuntarily separated from his position with the Library and seeks immediate reinstatement, accrued back pay, reasonable counsel fees and costs of this action.

 The defendant, Daniel J. Boorstin, Librarian of Congress, has been sued in his official capacity.

 Plaintiff was employed by the Library from September 22, 1969, until his dismissal under adverse action procedures some seven years later, on July 30, 1976. At that time Mr. Sullivan was a GS-5 Production Assistant Arranger, Processing Department, Catalog Publication Division.

 The notice of adverse action gave as its basis an incident which occurred on January 22, 1976 between the plaintiff and his supervisor of many years, Nathaniel Rushing, also a black male.

 A brief recitation of this matter will illuminate the situation as it evolved and then terminated in plaintiff's dismissal.

 The Catalog Publications Division, where the plaintiff was employed, was located in the 200 block of Massachusetts Avenue, N.E., in the District of Columbia and was not part of the main Library of Congress complex. Employees, including the plaintiff, who worked at that location and who drove to work had difficulty finding parking spaces in the general vicinity. As a custom, they would park on adjoining streets where parking was prohibited after 4:00 p.m. In order to accommodate employees faced with this dilemma, it had become customary for the supervisors to permit the employees the necessary time around 4:00 p.m. to leave work, move their vehicles, and then return before the daily departure time of 4:30 p.m. According to the plaintiff this procedure usually took no more than ten to fifteen minutes. *fn1" He states that this was the situation on January 21, 1976 when he contends he did return to the building, thereafter, but because of certain personal necessities did not stay in the main room where he performed his work; he left the building shortly prior to his required termination time, having completed his quota of work assigned for that date in less than eight hours. When plaintiff arrived at work the next morning he was encountered by Mr. Rushing who insisted that plaintiff had not returned to work on January 21 after leaving at 3:55 p.m. and that he was, therefore, required to complete a leave slip for one hour. *fn2" Although in general the relationship between the two men had been an amicable one and plaintiff was a very good employee with no prior disciplinary problems, there had been prior difficulties with plaintiff in a similar regard several times the past month. Plaintiff refused to sign the leave slip. The discussion continued between the two men which ended in a physical fight. Plaintiff contends that it was the supervisor who "attempted to push me out of his face" and "raised off the boxes (on which he was sitting) as if to put his hands on my chest." The supervisor challenges that statement and contends that it was the plaintiff who was the aggressor and that he, Mr. Rushing, did not hit plaintiff who was younger, 6'3 and 190 pounds since he knew that "I could get cut or I could bleed to death." The fight terminated when the supervisor, on the floor with the plaintiff, was able to attract the attention of a passerby who sent a security guard to terminate the melee. The plaintiff thereupon advised Rushing to the effect that the fight would finish later outside after work.

 Mr. Rushing sustained swelling, abrasions and bleeding around the face and left eye and upon the urging of Mrs. Gloria Hsia, Chief of the Catalog Publications Division, to whom he promptly reported the assault, he received medical attention from the Library's nurse and outpatient treatment at a local hospital.

 Mrs. Hsia, female and Oriental, was particularly concerned about the incident because of her knowledge of Mr. Rushing's recent serious health problems. He had been hospitalized a few weeks earlier for both a hernia operation and pulmonary embolism and was on medication to avert potential blood clotting problems. (The plaintiff, having visited Mr. Rushing at the hospital, was also aware of his supervisor's medical situation.)

 Confronted with plaintiff's denial of the fight despite Rushing's statement and appearance, plaintiff's allegation that he frequently "played" with his supervisor in this manner, his suggestion that Rushing's wound was "self-inflicted, or accidental or probably reopened an old wound", the nurse's affirmance that this was a fresh wound, the concern about Rushing's general health, the threat to finish the fight outside after work, and Mr. Sullivan's belligerence at that time, Mrs. Hsia placed plaintiff on "suspension" to return the next day when calmer. Plaintiff complained to the Employee Relations Office which placed him on leave with pay that day.

 The next day plaintiff discussed the matter with Patrick Bernard and Glen A. Zimmerman, two Library officers from the processing department who were investigating the matter. As a result of this, Mr. Sullivan was assigned to a detail at another Library location while the investigation continued.

A supervisor, in discharging his duties, should not be subject to physical abuse from a staff member. The Library has a responsibility to the supervisor who sincerely tried to enforce regulations and did so in a reasonable manner. Mr. Sullivan claims no memory of hitting Mr. Rushing, and he shows no remorse for the incident. If Mr. Sullivan were to make a physical attack upon Mr. Rushing, another supervisor, or a co-worker at sometime in the future, the bodily harm inflicted could be even more serious. In this instance an employee of greater strength struck a recently hospitalized supervisor when the issue was one hour of annual leave.
Because of Mr. Sullivan's own admissions about the events of January 21, 1976, because of the inconsistencies in his statements, his threat in the presence of Officer Deloatch, and the actual injuries suffered by his supervisor, it is necessary that he be removed from the Library. (Plaintiff's Ex. 1; Defendant's Exhibit D).

 At the time of this proposed adverse action Mrs. Hsia, with her 20 years employment by the Library, was unaware of any prior, similar instance of ...

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