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BROWN v. MARSH

May 11, 1989

JAMES E. BROWN, Plaintiff,
v.
JOHN O. MARSH, Secretary of The Army, Defendant



The opinion of the court was delivered by: RICHEY

 On May 12, 1988, the Court granted partial summary judgment in the plaintiff Brown's favor on the issue of liability in this Title VII action. The Court found that the defendant (the "Army") had failed to respond in a timely fashion to a proposed disposition of Brown's case prepared by the EEOC. The EEOC's proposed disposition included a finding that the Army had discriminated against Brown on the basis of his race, which is black. Accordingly, and in compliance with the terms of a Memorandum of Understanding that had been executed between the Army and the EEOC, the Court found that the Army's delinquent response effectively constituted an "adoption" of the EEOC's finding of discrimination.

 The Court's decision to enforce the EEOC's finding on the issue of liability, however, left unresolved the details of a rather large aspect of the case -- the remedy to which Brown is entitled. The Court, trusting in the reasonableness of the plaintiff and the fairness of the Army, had hoped that the parties would be able to resolve the issue among themselves. The passage of time, however, coupled with the venting of much spleen, ultimately convinced the Court that its trust was misplaced. Accordingly, the Court directed the parties to submit detailed statements of the relief to which Brown may be entitled, and obtained the parties' permission to decide the issue on the basis of these submissions. *fn1" The Court has reviewed the parties' papers, and describes herein the relief which Brown shall obtain. *fn2"

 A. Brown's Career Path

 The Court's grant of partial summary judgment dealt with the Army's refusal to hire Brown to a GS-9 position in 1976. The Court's judgment adopted the EEOC's conclusion that, in failing to obtain the position, Brown was the object of race-based discrimination. The Court further adopted the EEOC's suggestion that Brown be promoted to a GS-9 position retroactive to August 21, 1975, and that he receive back pay, including all within-grade increases, pay adjustments, and any promotions that may have accrued by way of restructuring or reclassification of the job that Brown was denied. *fn3"

 The language of the EEOC report, as tracked by this Court in its order of partial summary judgment, appears to limit Brown's retroactive relief to such improvements as may have occurred in the particular GS-9 position for which Brown applied. In other words, the language seems to suggest that Brown's relief should be structured solely according to the evolution of the position which Brown was improperly denied. The Army's arguments reflect this reading; the Army contends that Brown's retroactive relief should be calculated at a GS-9 level only.

 Brown wants more. He bases his request for relief on the subsequent career path of the individual (Charles Sheuddig) actually chosen for the GS-9 position, although Brown asks the Court to ignore several career setbacks experienced by Sheuddig which, according to Brown, he would not have suffered. Brown's approach would mirror precisely Scheuddig's progress from 1975 to 1982, during which time Scheuddig moved from a GS-9 to a GM-13. From 1982 to the present, however, for various reasons which Brown suggests would not apply to him, Scheuddig moved between GM-13 and GS-12. Scheuddig is presently a GS-12. Brown asks the Court to ignore Scheuddig's instability from 1982 to the present, and to (1) compensate Brown as a GM-13 consistently during this period, and (2) install him in a position compensated at the GM-13 level.

 After reviewing the evidence, the Court is convinced that compensation pursuant to Brown's "career path" theory is required to make him "whole." In Albemarle Paper Co. v. Moody, 422 U.S. 405, 45 L. Ed. 2d 280, 95 S. Ct. 2362 (1975), the Supreme Court articulated Title VII's remedial objective as being "to make persons whole for injuries suffered on account of unlawful employment discrimination." Id. at 418. Accordingly, a district court which endeavors to fashion a remedy for discrimination cannot confine itself to narrow or technical measures which, while perhaps bearing a logical connection to the plaintiff's complaint, fail to reflect the whole of the plaintiff's injury. Rather, comprehensiveness, and a keen sensitivity to the equities of the case before it, must control the court's determination.

 The record in this case suggests that Brown was an eminently competent employee, and perhaps an exceptional one. *fn4" His personnel reviews during the pertinent period consistently sing Brown's praises; his analytical and organizational skills are noted and extolled at every turn. Logic and the record thus compel the conclusion that Brown -- absent the Army's discriminatory action and the career hurdles erected by the pendency of this litigation -- would have progressed well beyond the GS-9 level. To restrict his remedy to GS-9, as the Army requests, would therefore be to engage in precisely the type of cramped remedial architecture that Albemarle and Title VII generally abhor. A remedial decree which considers career progress improperly denied is well within this Court's discretion under Title VII. See Zipes v. Trans World Airlines, Inc., 455 U.S. 385, 399, 71 L. Ed. 2d 234, 102 S. Ct. 1127 (1982); Franks v. Bowman Transport. Co., Inc., 424 U.S. 747, 762, 47 L. Ed. 2d 444, 96 S. Ct. 1251 (1976).

 The obvious benchmark for evaluating Brown's thwarted progress is the career path of the man promoted in his stead -- Charles Scheuddig. With this said, of course, the Court immediately concedes the analytical imprecision of such an approach. In the real world, even had Brown been awarded the GS-9 position by totally objective decisionmakers, it is conceivable that he could have been killed by a bus on his way to celebrate his new job. The point is simple: there is no way of assuring with certainty that, absent discrimination, Brown's career would have ascended in the same way as Scheuddig's. The use of Scheuddig's career as a proxy for Brown's should not be taken as a finding that Brown's employment history, as a factual matter, would have mirrored Scheuddig's. The Court merely adopts this methodology because the Army's alternative -- compensation at a GS-9 level -- seems clearly inequitable, and because there appears to be no more precise way of providing Brown full compensation. *fn5"

  Using Scheuddig's career path as a guide, Brown is clearly entitled to the difference between what he earned and what Scheuddig earned during the period from August 21, 1975 (the date of the improper denial) and June 8, 1982. *fn6" The latter date, however, presents the first problem. On May 23, 1982, Scheuddig was appointed to a temporary position as a Housing Project Manager, which was compensated at a GM-13 level. *fn7" The position was set to be filled permanently on or about June 8, 1982. Scheuddig was entitled to apply for the permanent position, but, for reasons that are unclear, chose not to do so. *fn8" As a result, once a permanent employee was chosen, the Army downgraded Scheuddig to another GS-12 position. Brown, however, contends that he would have applied for and been chosen to fill the permanent position as Housing Project Manager, and that his remedial career path should depart from Scheuddig's in this respect.

 On its face, Brown's claim seems to suffer from an excess of self-confidence. Yet, when the record is considered, Brown's claim becomes more reasonable; indeed, it becomes quite persuasive. The record proves nothing if not Brown's ambition. Brown consistently applied for advanced positions during the years in question; he was an aggressive employee whose immediate goal at all times seems to have been self-advancement. It would ignore Brown's nature, as revealed in the record, to conclude that he would not have applied for the permanent position as Housing Project Manager when it became available in June of 1982.

 The record also indicates a likelihood that he would have been chosen for the permanent position. As noted above, Brown was a stellar employee. His performance evaluations are replete with glowing commendations. At least two of his supervisors, in materials prepared in connection with this litigation, have indicated that Brown would have been chosen for promotion to other (concededly less senior) positions had certain restrictions, related to this litigation, not been in place. *fn9" While the foregoing cannot establish Brown's entitlement to the permanent position with ontological certainty, they do prove to the Court's satisfaction that equity requires that Brown's "remedial bundle" include compensation reflecting a successful application for the permanent position. *fn10"


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