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November 30, 1988

SECRETARY of the NAVY, Defendant

Gerhard A. Gesell, United States District Judge.

The opinion of the court was delivered by: GESELL


 This is a Title VII (42 U.S.C. § 2000e et seq.) race discrimination case arising in the context of a non-selection for promotion in government employment. The case came before the Court for a bench trial after the EEO concluded plaintiff had a prima facie case and settlement efforts broke down because plaintiff desired legal fees and the Navy was unwilling to admit liability as part of an agreed disposition. Proposed findings of fact and conclusions of law have been submitted by the parties after a full trial to the Court on the merits.

 The Court has jurisdiction. 42 U.S.C. § 2000e 16 (c). All administrative procedures have been followed and plaintiff has sued within the time allowed by the statute.

 The claim before the Court is that the selecting official, the General Foreman in the Maintenance Branch of the Transportation Division of the Navy, a black, discriminated against the black plaintiff when he selected a white for promotion to the non-supervisory position of Automotive Equipment Repair Inspector (WC-11). The white applicant and the black plaintiff applicant were co-workers and outstanding mechanics in the Light Duty Section of the Branch.

 The selecting official and second line supervisor over the Light and Heavy Duty Sections, Mr. Waters, reported to a white, who viewed his performance as exceptionally competent. Under Waters, the Light Duty Section was, in turn, supervised by a white. Wallace, the white selected for the inspector's job, was the only white mechanic in the Light Duty working unit of seven; all other employees were black. Because the plaintiff was a member of a protected class who applied for and was qualified for a job for which a member of a non-protected class was selected, he made out a prima facie case of race discrimination. Texas Department of Community Affairs v. Burdine, 450 U.S. 248, 253, n.6, 67 L. Ed. 2d 207, 101 S. Ct. 1089 (1981), paraphrasing McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802, 36 L. Ed. 2d 668, 93 S. Ct. 1817 (1973).

 Eccleston and Wallace were exceptionally well and equally qualified. *fn1" The selecting official was faced with a difficult choice. Shortly after he made his decision, he could not articulate his reasons other than to say he acted on his "gut feeling." (Tr. at 37-38, 97, 151-152). He later attempted, in various forms, to elaborate on his rationale, usually by emphasizing his reliance on the SF 171's, (See, e.g., Tr. at 119), but these statements must be viewed as ex post facto justifications. Under the circumstances presented, the governing rules allowed him to use his best judgment in selecting the individual who would best serve his needs. The defense contends that this "gut feeling" was based on the applications he reviewed and is a proper basis for making a management decision to promote a supervisee. However, under Title VII law, the defendant did not meet his burden of articulating a legitimate, non-discriminatory reason for the selection. Waters' explanation was neither clear nor reasonably specific, as the law requires. Burdine, 450 U.S. at 258. While this deficiency gives rise to an inference of discrimination, Eccleston still had the ultimate burden of proving by a preponderance of the evidence that his employer discriminated against him. Burdine, 450 U.S. at 253-254.

 There is no question that a black may consciously or unconsciously discriminate against another black and be liable under Title VII. *fn2" In this instance, the factual issue of whether he did discriminate is close. Plaintiff contends that Waters intentionally tried to keep another black from promotion for fear that, in the circumstances of this case, the selecting official would find himself outclassed by another black. The defense contends he made the selection properly, and that plaintiff has not met his burden of persuasion. (Defendant's Conclusions of Law, para. 9, 10). Neither of these contentions is supported by a preponderance of the evidence.

 There is no solid, corroborated proof of overt race discrimination. Eccleston is somewhat overly sensitive in this area. Perhaps he simply failed adequately to articulate facts that would justify his reactions to slight incidents he considered offensive racial behavior. Eccleston claims he felt excluded or belittled on numerous occasions. For example, he knew how to get a broken key out of an ignition, though he did not tell Waters he knew, and he heard Waters say on the phone that "We don't know" [how to get the key out], but "We're going to research it." Eccleston felt belittled by this. (Tr. at 271-272). Once Waters was standing with other mechanics, showing them a birthday card that he was going to give his grandfather. Eccleston came on the scene, but was told it didn't concern him. Once again he claims this shows racial bias, although Waters was showing the card to other black co-workers.

 More serious, yet still not persuasive, is an incident which occurred one day after work, when Eccleston, a neat, well-groomed, attractively youthful individual, put on good clothes in preparation for his evening classes. Waters allegedly said, "You look like a college boy." However, others testified that he did not use the potentially offensive word "boy" at all, (Tr. at 428-429, 445), and at his EEO factfinding hearing, Eccleston himself did not mention the word "boy." In any event, this was not meant to be a racial slur, and it reflected no racial animus, as Eccleston suggests.

 A similar comment, though it was flatly denied by Waters and was not witnessed by anyone else, is Waters' alleged comment to Eccleston that he would not "make it" at Northern Virginia Community College; that he and his wife had tried, but that it was too much. (Tr. at 274-275). This incident was presented to exemplify Eccleston's thesis that Waters was the highest-ranking black official in that area of the Navy Yard, and that he zealously guarded this position from the "threat" of other successful blacks. This incident, even if it occurred, does not suffice to meet the burden of persuasion.

 In his effort to prove intentional discrimination, Eccleston also called several co-workers to testify regarding the manager's treatment of other blacks. Most of these examples related to working conditions, not race. Waters is an example of a rising group of managers in the federal service who insist that the sloppy, permissive atmosphere of some agencies in the past must be replaced by scrupulous monitors to assure full compliance with rules previously ignored too often. Waters went by the book. He demanded that workers report on time, remain on the job during working hours, not steal government material, not take unauthorized vacations or feign family emergencies, and record the time they spend on each particular task for the purpose of comparing times spent on particular tasks to private industry standards. The shop was under-financed, under-staffed and under-supplied, but faced Waters' exacting demands as volume mounted. The black mechanics were, by and large, highly experienced and competent but placed under unaccustomed pressures after a long, more relaxed period. They understandably resented the new conditions. They blamed the boss, accepted unfounded rumors regarding discipline of co-workers, and labeled their plight race discrimination. The Court is unpersuaded that the proof demonstrates that the selecting official discriminated in his day-to-day relations with the Light Duty Section staff, especially in light of testimonial proof the Court accepts that the accelerated pace of work existed and was equally applied to whites.

 In addition to the inference of discrimination caused by defendant's failure to articulate a reason for the non-promotion, another consideration more convincingly tips the scale to Eccleston's favor. Wallace was not better qualified than plaintiff for the promotion. Here was a classic opportunity to apply affirmative action. Waters' superior brought ...

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