that thereafter the default rate only grew worse. By 1976, the rate was nearing 30 percent, collection efforts were having only marginal success, and the District was in debt to area banks that had advanced the loan monies. Far from proving that McCormick was to blame for this state of affairs, however, the evidence shows that for years it was McCormick -- and apparently only McCormick -- who was calling attention to the program's needs and getting little response from his superiors. Defendant produced no memoranda or letters, before Turner's after-the-fact memo, linking McCormick to the program's troubles, nor any showing that he had been reprimanded for poor work. His personnel file contains no evaluations that rank him below satisfactory. In fact, the only document submitted by defendant that pertains to the loan program and is dated before McCormick's demotion is a "Dear Bob" memorandum dated April 14, 1975. It informs McCormick of the results of a review conducted by the District's Program Operations Branch. The review had taken place over a year earlier, in February 1974. Coupled with plaintiff's exhibits showing that McCormick made frequent requests of his superiors for assistance, including for accounting help, this is forceful evidence not that his superiors were unhappy with his performance but that too little attention was being paid to both McCormick and the loan program.
On several occasions before his demotion, McCormick urged that the loan program be authorized to take defaulters to court. His pleas went unanswered or were denied. After he was reassigned, however, this reform was implemented. The defendant's attempt to use these as evidence that McCormick did not take proper steps to pursue defaulters is thus disingenuous. The more probable explanation is that someone in power finally paid attention to the suggestion when it was made by an employee other than McCormick.
It seems that McCormick's superiors did not take a serious interest in the program until the "heat" was on in late 1976 and early 1977, when Congress was investigating the program, there were newspaper stories, and there was talk of its discontinuance. Then, at least for purposes of defending against McCormick's various complaints,
they sought to make McCormick the scapegoat for the neglect of others. Turner's predecessor, Ettyce Moore,
and her predecessor, William Rumsey, both testified that they had been satisfied with plaintiff's work. Several bankers who had dealings with the District's loan program also testified in plaintiff's favor. After McCormick's transfer, Turner was given an enlarged staff and authority to take court action against defaulters. It was no wonder that collection levels picked up in 1977 and 1978, given the added resources and the attention of her superiors. Even so, problems persisted well into 1977, months after McCormick had left the division.
By objective measures, then, the loan program was having problems, but McCormick successfully rebutted the District's contention that he was to blame by showing the inattention of his higher-ups. Moreover, even if McCormick were unqualified for the position given to Turner, he would still be entitled to prevail because he has demonstrated that regardless of his qualifications, it was not doubt as to those qualifications that was the motivating force for the adverse personnel decisions to which he was subjected; it was simple and plain racial discrimination. It is worth noting that 1980 determination of the District of Columbia's own Office of Human Rights found "probable cause to believe that the respondent has violated the Human Rights Act of 1977 by subjecting the Complainant to disparate treatment in the terms and conditions of his employment because of his race (White)."
In short, plaintiff has shown that "these legitimate reasons offered by defendant were not relevant to his case and thus were merely pretextual." Garner v. Boorstin, 690 F.2d 1034, 1036 n.3 (D.C. Cir. 1982) (per curiam).
The Human Resources Department could point to no neutral committee that routinely passed on the credentials of employees, as was the case in Burdine, supra. Civil service and District government regulations, to the extent that they are a proxy for evenhandedness, were violated time and time again in McCormick's case. If Turner and others genuinely thought McCormick was ill-suited for his job back in 1976, the appropriate options open to them were to work through proper channels to find him a job that would better suit him at the same GS level, or to transfer, to demote, or to remove him through proper procedures. None of these was done.
When McCormick protested being stripped of his supervisory duties by Turner's fiat, he was summarily transferred out of the field in which he had worked for seven years. Plaintiff was not even informed personally of this obviously unsettling and unexpected news. A court may take account of a Title VII defendant's insensitivity when it is particularly egregious and can be explained on no other ground than prejudice. See, e.g., Jones v. Trailways Corp., 477 F. Supp. 642 (D.D.C. 1979). Plaintiff's was a high visibility job. It brought him in contact with numerous outsiders, such as bankers and members of educational institutions. The demotion embarrassed him not only in the eyes of the workers he had previously supervised, see Jones, supra, but also among these outsiders.
At the time of the reassignment, the transferring official, Bernard Phifer, told a newspaper reporter that McCormick's "new assignment meets a high priority need."
Yet it is undisputed that the new assignment was to an essentially nonexistent job in a department whose superiors did not want him,
and who gave him no work whatever to do for nearly two years. These are hardly the characteristics of a "high priority" job.
Moreover, the transfer of McCormick to a job without a job description was hardly in keeping with Yeldell's April 9 announcement that "all managers -- whether or not they will be undertaking new assignments -- must be given clearly defined responsibilities and the authority necessary to accomplish these responsibilities." What the District did, rather, was to "suddenly take an employee of . . . demonstrated worth and place him in a position where he [was] of value neither to the agency nor to himself." Dual v. Griffin, 446 F. Supp. 791, 799 (D.D.C. 1977). As the court said in Dual, this "can be explained only as an inconsiderate retaliation for [McCormick's] efforts to seek redress for his complaints of racial discrimination." Id.
There is also the fact that there was no legitimate reason why Turner should have tried to further demote McCormick after she was no longer his supervisor. Yet, as the Office of Human Rights itself found, she did so for 14 months. This activity can only be described as retaliatory.
Finally, when plaintiff attempted to vindicate his rights by filing a complaint with the Human Resources Equal Opportunity Coordinator, no definitive action was taken.
The only explanation for the series of decisions made hastily and in violation of applicable regulations is that the officials making them were motivated by racial animus toward the plaintiff. Because defendant's answers to plaintiff's prima facie case consist of evidence that either is not credible or has been shown to be pretextual, the Court holds that the District of Columbia unlawfully discriminated against McCormick because of his race
when it blocked a promotional opportunity, demoted him, and reassigned him.
The Court has pendent jurisdiction over plaintiff's claim brought under the District of Columbia Human Rights Law, D.C. Code § 1-2501 et seq. (1981). Defendant contends that this claim is barred by plaintiff's failure to exhaust his administrative remedies. The point is not well-taken. Plaintiff filed a complaint with the Office of Human Rights that resulted in a finding of probable cause pursuant to § 1-2545. The decision recommended conciliation efforts, but there is no evidence that anything further occurred. The next step would have been for the District to issue a notice of hearing pursuant to § 1-2550 -- a step it never took. Not receiving this notice, plaintiff was justified in raising the issue directly in this Court. Defendant cannot benefit from its failure to follow the mandates of its own laws by arguing that it was plaintiff who had the obligation to take the next administrative step.
The Human Rights Law permits the award of punitive damages if at least one of several factors is present. 21 D.C. Register No. § 3.11 pp. 1615-16 (Jan. 15, 1975). Here at least three of the five factors obtain: McCormick was demoted, the incident occurred publicly as evidenced by newspaper coverage, and the defendant's acts were "repetitive . . . to the extent that they constituted harassment or caused unusual inconvenience." Id. at 31. Accordingly, an award of punitive damages is warranted. See Abbate v. Hyatt Corp., 28 F.E.P. Cases 542 (D.D.C. Feb. 25, 1982).
Plaintiff has also requested a retroactive promotion to Chief, Office of Educational Affairs, the post Turner was given in 1976. Over six years have passed since Turner assumed this post and the Court would not be justified in replacing her with McCormick in view of the disruption such an order would cause. In addition, since Turner and McCormick remained at the same grade until June of this year, a retroactive promotion tied to Turner's employment history would result in monetary gain for McCormick only as of June 1982. This can be effected just as easily by ordering that McCormick be promoted to GS-14 retroactive to the date on which Turner's promotion took effect.