The opinion of the court was delivered by: GREEN
Plaintiff Henry Acosta, a male Hispanic, brought this action under Title VII of the Civil Rights Act of 1964, as amended (42 U.S.C. § 2000e et seq.), the Civil Rights Act of 1866 (42 U.S.C. § 1981), the Civil Rights Act of 1871 (42 U.S.C. § 1983), and the Due Process Clause of the Fifth Amendment.
Acosta was employed as an associate professor of the Department of Criminal Justice by the Washington Technical Institute (WTI) in 1974. WTI merged with two other schools and became the University of the District of Columbia (UDC) in 1977-78. Acosta continued as associate professor in its Department of Criminal Justice of the School of Business and Public Administration. In 1978 Acosta applied for promotion to full professor. His application was denied. Plaintiff alleges that he was completely qualified for the position of full professor and that this denial was due solely to discrimination based on his race and national origin. He further alleges that since 1978 when he filed his Equal Employment Opportunity Commission (EEOC) complaint, UDC has taken retaliatory measures against him in that his grant applications have been denied, and he has not been awarded any step increases at his grade level. Plaintiff has exhausted his administrative remedies and seeks a declaratory judgment, promotion to full professor, back pay, implementation of an affirmative action plan, compensatory damages, punitive damages, and attorneys' fees and costs.
A trial de novo was held in this case from October 9, 1981 through October 16, 1981. The Court heard testimony from twenty-two witnesses, including all of the major actors involved in the denial of plaintiff's request for promotion. The Court had full opportunity to observe each witness' testimony and demeanor and has made careful judgments on each one's credibility. There were some witnesses who were obviously biased and the Court has weighed this fact in evaluating their testimony. Based on its consideration of the testimony presented, the exhibits introduced into evidence, the memoranda filed by the parties and the entire record in this case, for the reasons stated below, the Court has concluded that UDC discriminated against Acosta based on his race and national origin in failing to promote him to full professor.
A. Plaintiff's Background and Qualifications:
Plaintiff obtained a B.A. in Spanish, Spanish History and Literature at St. John's College in Brooklyn, New York in 1951. He also obtained an MPA in Public Administration and Police Science from the John Jay College of Criminal Justice, the City University of New York in 1971.
From 1951 to 1971, plaintiff was a member of the New York Police Department, advancing through the ranks of Patrolman, Detective, Sergeant and Lieutenant. He was assigned as an Instructor for twelve years at the New York City Police Academy intermittently from December 1953 to 1971. He was involved in various other teaching duties as well while at the New York City Police Department, such as lecturing on Police Science at the City University of New York and teaching human relations, law enforcement and Spanish to police recruits and cadets. He holds a vocational/technical certificate of competency as Instructor in Police Practices from the Board of Education of the City of New York.
Plaintiff is bilingual in Spanish and English. He speaks English with no foreign accent. He belongs to several professional associations and has published six articles.
In addition, he has numerous research papers to his credit which he has written during the last decade. These papers largely concern evaluations of and recommendations on the academic program and personnel policies at UDC. Plaintiff also produced and directed two films for the Library of Alexandria, Virginia in 1973 on the police handling of the alcoholic and the law enforcement program at Northern Virginia Community College.
From 1971 to May of 1973, plaintiff was an assistant professor of the Northern Virginia Community College. In 1973 he was the program head of the College's Law Enforcement program. During the latter part of 1973 plaintiff taught at the National Center for Alcohol Education in Rosslyn, Virginia as a faculty associate. Plaintiff was rated at a GS-13 level by the U. S. Civil Service Commission when he applied for a position as Course Developer/Instructor at the U. S. Treasury Training School in 1975.
B. Plaintiff's Employment at UDC:
Plaintiff has taught at UDC and its predecessor institution, WTI, as an associate professor in the Department of Criminal Justice since he was hired in 1974. From January of 1974 to September 1978 he did not miss one day's work or teaching assignment due to his being absent on sick leave. In addition to his paid teaching, he has been active in the administration of UDC. He has served on various committees, including the Academic Affairs Committee, the Curriculum Function Committee and others, and has acted as advisor to the dean of the Criminal Justice Division on numerous occasions. The Dean of the Faculty commended Acosta for the assistance which he provided the Latino program in 1976.
Plaintiff has volunteered his time also to UDC. He taught two sessions without pay at the Van Ness Campus (VNC) Continuing Education Officer program in 1976. The Continuing Education department acknowledged his outstanding voluntary service and characterized his efforts as "time consuming and beyond his normal teaching responsibilities." In 1981, plaintiff was selected to be an EEO Counselor-at-large, a position which he has performed in addition to his regular duties.
Because of his interest and background in management, plaintiff applied in 1979 for the position of Associate Vice President for Planning in the Executive Vice President's Office. A black female was awarded the job. Despite UDC's awareness of plaintiff's interest in a management job, he was not advised of a subsequent opening, that of Associate Vice President for Academic Personnel Management. The job was awarded to a black male with less managerial experience than plaintiff. In fact the only two Hispanics in administrative positions are Messrs. Casciero and Neira. Mr. Casciero makes less salary than some of his subordinates and Mr. Neira's salary is lower than other non-Hispanics doing comparable work.
Acosta also has encountered difficulties in procuring grants from the University. He applied for three grants and each application was denied. In 1980, he applied for a grant to research and write a criminal justice text for which he was eminently qualified. The application for the grant required the signature of the Dean of the College solely to attest that the research project would not interfere with the professional duties of the applicant. Dean Butler, a black male, in addition to signing plaintiff's proposal, criticized it. Plaintiff's application was the only one which had a negative comment on it by the Dean. (Exactly what was stated is unknown since the University has "lost" the document.) As stated above, plaintiff did not receive the grant.
C. Plaintiff's Performance as an Associate Professor:
Acosta has received superb annual evaluations throughout his tenure at WTI and UDC and has been recommended for reappointment each year. In 1974, plaintiff's department chairperson Dr. Stewart commented on the superlative work done by plaintiff. The 1975 evaluation was signed by the next department chairperson, Mr. Nickens. It classified plaintiff's work as excellent and commended him for his involvement in extra academic activities, such as committee work and academic writing. Plaintiff's 1976 evaluation characterized him as versatile, thorough and professional and again commended his extracurricular activities and his efforts at professional self-improvement. Dean Anderson and WTI president Dr. Dennard endorsed each of these three recommendations and evaluations.
In the winter of 1977, plaintiff was reviewed as above average. The fall of 1977 evaluation described plaintiff as highly conscientious and capable in the performance of his professional duties. In 1978, plaintiff was given a composite rating of 97.4% out of 100% and an overall rating of excellent. The 97.4% score represented a rating on five criteria: peer evaluation, student assessment, teaching relating activities, professional achievements and service University/college/community. The chairperson of the evaluation committee, Kelsey Jones, signed the evaluation and the department chairperson concurred. Dean Butler, however, refused to concur because of "insufficient quantity and quality of ...