highly competent, proud of their performance as blacks who had made an extra effort to succeed, and were ambitious to move further. Born in Panama, Eccleston had a strong United States military record. He had taken outside courses in auto mechanics and had followed a career remarkably similar to that of Waters, who came from an established Washington, D.C. black family. However, Waters and his wife had found themselves unable to complete their degrees, while Eccleston had completed his associate's degree and was working towards another degree from the same institution which Waters attended. The selector had commented various times on their similarities, mentioning for instance, that he, too, had studied in his car during breaks when he was in school.
There is no question that a black may consciously or unconsciously discriminate against another black and be liable under Title VII.
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 this to his attention. Paragraph M of the Merit Staffing Procedures Manual provides that:
The selecting official should choose the person(s) who will best fulfill management's needs in terms of productivity and the total objectives of the organization including affirmative action and equal opportunity.
(Plaintiff's Ex. I) Paragraph P provides that: "When minorities and women are among the best qualified candidates, each manager and supervisor has the obligation to insure that they are given full consideration." The union agreement also provides notice that affirmative action is a goal of management. Article Sixteen of the Negotiated Agreement between the Naval District and the Washington Area Metal Trades Council provides in Section 2 that:
The Committee [EEO] should concern itself primarily with providing advice and assistance to the Head of the Activity in the implementation of the Activity's affirmative action plan. The plan should ultimately enhance employment and advancement opportunities for all employees, with particular emphasis placed on the minority group employees.