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June 18, 1987

Wellington H. Mitchell, Plaintiff,
Malcolm Baldrige, Defendant

The opinion of the court was delivered by: RICHEY

 Plaintiff has asked the Court to order defendant to furnish him with reasonable administrative leave for time expended in connection with discovery and pre-trial preparation for this Title VII suit. Defendant vigorously opposes this motion. The Court has carefully considered the motion, the opposition thereto, the legal memoranda filed by both sides, and the underlying law, and will grant plaintiff's motion, subject to the conditions set forth in this Opinion and the Order that accompanies it.

 First, to deny plaintiff's request would be to ignore the broad mandate of Title VII. The Civil Rights Act of 1964 and the Equal Employment Opportunity Act of 1972 were

designed to afford to those suffering from discrimination an efficacious remedy, unencumbered by unnecessary difficulties and obstacles. For that reason, it must be, and has been, liberally construed to achieve its objectives.

 Davis v. Bolger, 496 F. Supp. 559 (D.D.C. 1980), see also, Barnes v. Costle, 183 U.S. App. D.C. 90, 561 F.2d 983 (D.C. Cir. 1977).

 Davis involved a challenge to the federal policy of allowing federal employees who testify in a Title VII case to take administrative leave only if they appear on behalf of the government. Davis held that Title VII prohibited the government from denying administrative leave to employees who testify against the government in a Title VII case. The decision was grounded on a principle that is directly relevant to this action: the federal government's interest in eradicating discrimination in its ranks prevents it from treating a Title VII plaintiff any less favorably than it treats itself for the purposes of the litigation.

 This was precisely the principle that the government ignored in the Davis case. By granting administrative leave only to those employee-witnesses who testify for the government, the government put a Title VII plaintiff at a comparative disadvantage. This practice violated the spirit of Title VII, for

certain Title VII provisions are designed . . . to provide . . . the Title VII plaintiff with a slight 'boost' over his employer-defendant as a means of rectifying the imbalance of strength and resources inherent in their relationship, and of facilitating the redress of injuries caused by discrimination.

 496 F. Supp. at 564.

 Nor were those statutory "boosts" to plaintiffs the only reason for finding that the government's partiality violated Title VII. As Davis so correctly found, the government's actions could not be justified on the theory that it has an interest in defeating discrimination claims against it and thus an interest in not assisting the "other side." For, as Davis noted,

In a Title VII lawsuit the plaintiff in a very significant sense is not on the other side. The United States has a substantial interest of its own in the elimination of discrimination on account of race, sex, age, or physical handicap in its ranks -- an interest at a minimum sufficient to preclude the creation of artificial obstacles in the path of those whose actions tend to vindicate that interest, whatever their own private motives may be.

 These points are directly pertinent to plaintiff's motion. As plaintiff notes, defendant Baldrige, who is sued in his official capacity as Secretary of Commerce, is not present at pre-trial proceedings or at trial. Instead, he is literally represented by agency counsel. Agency counsel does not serve at those proceedings as Secretary Baldrige's lawyer -- the United States Attorney serves that function -- but as an occupant of the defendant's shoes. And the salary paid to agency counsel fully covers time at depositions, meetings with the United States Attorneys, and other facets of pre-trial preparation. Thus, plaintiff's situation is analogous to the one condemned in Davis : the government pays for time expended on pre-trial proceedings by "defendant," but it will not do the same for plaintiff.

 Moreover, allowing plaintiff to take administrative leave to prepare for trial is consistent with the broad objectives of Title VII. Both plaintiff and defendant have an interest in vindicating plaintiff's rights, if he has indeed been the victim of discrimination. A plaintiff like this one, who depends upon his salary, and who may face substantial hardship if forced to use annual leave when he must be preparing for litigation, may well face a choice between his ...

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