may well face a choice between his livelihood and his lawsuit. This is utterly inconsistent with the "boost" that Title VII provides plaintiffs in other regards.
Defendant argues that Davis is limited to court appearances by witnesses and should not be extended to cover time for trial preparation. The Court, however, can see no reasoned way to draw this distinction. If anything, the argument for allowing a plaintiff to take administrative leave in order to prepare for trial is stronger, as it is the plaintiff's rights that are at issue in the lawsuit. To allow witnesses to be paid for their trial participation, and to deny the allegedly injured plaintiff the right to prepare those witnesses without further financial hardship, would make little sense indeed.
This holding is thoroughly consistent with related case law and administrative practice. First, Title VII plaintiffs in suits against the government are allowed paid leave while they pursue their claims through the administrative process. Under 29 C.F.R. § 1613.214(b), a complainant is entitled to a "reasonable amount of official time to present his complaint. . . .". This extends not only to the administrative hearings but to preparation for those hearings as well. See EEO Management Directive No. 403, para. 6c, at 2 (Sept. 1983), attached to Plaintiff's Reply as Exhibit 1.
The required administrative enforcement procedure complements the judicial remedy, together, the administrative and judicial avenues for relief provide the Title VII plaintiff with a full mechanism for vindicating rights and eradicating employment discrimination. See, e.g., Brown v. General Services Administration, 425 U.S. 820, 831, 48 L. Ed. 2d 402, 96 S. Ct. 1961 (1976). There is no reason for paying plaintiff for pre-hearing activity at the administrative level and refusing to make the same payment for the same activity when the same claim is in a different forum. The government's interest in eliminating any possible discrimination is the same, and plaintiff's claims surely are no different.
Moreover, this particular plaintiff's claim for paid leave is particularly strong. A successful Title VII plaintiff is entitled to reimbursement for vacation leave, or for unpaid leave, that was used for pre-trial activities. Despite defendant's claims that reimbursement for trial preparation is never permitted, there is no question that plaintiff could be retroactively reimbursed for reasonable pre-trial expenses if he prevails in his suit. Kyles v. Secretary of Agriculture, 604 F. Supp. 426, 437 n. 21 (D.D.C. 1985); Laffey v. Northwest Airlines, 572 F. Supp. 354 (D.D.C. 1983), aff'd. in part and remanded in part on other grounds, 241 U.S. App. D.C. 11, 746 F.2d 4 (D.C. Cir. 1984), cert. denied, 472 U.S. 1021, 105 S. Ct. 3488, 87 L. Ed. 2d 622 (1985).
Although plaintiff is not a "prevailing party" in the strict sense of that term, neither is he an untested litigant. This case is now on remand to this Court. Plaintiff has already had a trial and an appeal on his claims, and the Court of Appeals for this Circuit has found that plaintiff made out a prima facie case of discrimination and may be able to show that defendant's alleged rationales for its actions were pretextual. Mitchell v. Baldrige, 245 U.S. App. D.C. 60, 759 F.2d 80 (D.C. Cir. 1985). Thus plaintiff, while not a "prevailing party," has advanced claims that have withstood some scrutiny. Although this is not dispositive, it is yet another factor that mitigates in favor of plaintiff's request.
For the above-mentioned reasons, the Court will grant plaintiff's motion. The Court is, however, concerned that plaintiff receive compensation only for time reasonably expended in pre-trial activity and that such leave be consistent with the standards set forth in EEO Management Directive No. 403. This includes reasonable time for attendance at depositions, meetings with counsel, other ordinary and legitimate pre-trial undertakings that require the presence of the plaintiff, and attendance at trial.
In accordance with the Opinion in the above-captioned case, on even date herewith, and for the reasons set forth therein, it is this 18th day of June, 1987,
ORDERED that plaintiff's motion for administrative leave shall be, and hereby is, granted, and it is
FURTHER ORDERED that provision of any such administrative leave shall be consistent with the standards set forth in EEO Management Directive No. 403 and shall be limited to leave that is reasonably necessary, under the circumstances of this case, for plaintiff's attendance at and participation in depositions, meetings with counsel, other ordinary and legitimate pre-trial activity, and attendance at trial.