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April 20, 1976

WILLIAM B. SAXBE, et al., Defendants

The opinion of the court was delivered by: RICHEY

 Charles R. Richey, United States District Judge.

 Plaintiff, Diane R. Williams, brings this action to recover damages and for other relief as a result of defendants' alleged violations of the provisions of Title VII of the Civil Rights Act of 1964, as amended by the Equal Employment Opportunity Act of 1972, 42 U.S.C. ยง 2000e et seq., and other acts of Congress; specifically, plaintiff alleges that she has been denied equal employment opportunities in the Department of Justice because of her sex. Plaintiff was a female employee of the Community Relations Service ("CRS") of the Department of Justice from approximately January 4, 1972 to September 22, 1972, at which time her employment with the CRS was terminated. Defendants are the Attorney General of the United States and the Director of the CRS of the Department of Justice.

 This action is before the Court at this time for review of the administrative record. Pending before the Court are defendants' motion to dismiss, defendants' renewed motion for summary judgment, and plaintiff's motion for judgment. While plaintiff originally sought a trial de novo, plaintiff has since stipulated to have the Court render a final decision on the agency record. *fn1"

 This Court perceives there being two issues presented for resolution. The first issue is whether the retaliatory actions of a male supervisor, taken because a female employee declined his sexual advances, constitutes sex discrimination within the definitional parameters of Title VII of the Civil Rights Act of 1964. The second issue is twofold: how should the administrative record be reviewed, and what result should be reached based on the record.

 In order to properly address the first issue, the factual and procedural background of this action must be considered.


 On January 4, 1972, plaintiff began her employment with the CRS as a public information specialist ("PRO"), Grade GS-7, under a temporary appointment not to exceed one month. Within a short time after her employment commenced, the Civil Service Commission reviewed plaintiff's status and converted her appointment to a career conditional, Grade GS-8, effective January 23, 1972, subject to a one-year probationary period, retroactive from January 4, 1972. During plaintiff's employment, her immediate supervisor was a Mr. Harvey Brinson. On September 11, 1972, Mr. Brinson advised the plaintiff of his intention to terminate her and, by notice dated September 21, 1972, her termination was made effective on September 22, 1972. In the interim, September 13 to be exact, plaintiff filed a formal complaint alleging sex discrimination.

 Plaintiff's discrimination complaint alleged, in essence, that she had had a good working relationship with Mr. Brinson up until she refused a sexual advance made by Mr. Brinson in June. She asserted that thereafter Mr. Brinson engaged in a continuing pattern and practice of harassment and humiliation of her, including but not limited to, unwarranted reprimands, refusal to inform her of matters for the performance of her responsibilities, refusal to consider her proposals and recommendations, and refusal to recognize her as a competent professional in her field. On the other hand, the alleged basis for terminating plaintiff was her poor work performance during this same period.

 After an investigation of plaintiff's allegations was conducted, plaintiff received notice from an Equal Employment Opportunity officer that a finding of no discrimination was proposed and that she had various options to pursue, including an administrative hearing. Plaintiff elected to have the hearing, which was held in May and June of 1973. On September 11, 1973, the Complaints Examiner issued his recommended decision, which was a finding of no discrimination based on sex. This recommendation was adopted by the Complaint Adjudication Officer on December 21, 1973, apparently because in the agency's view the evidence did not establish "any causal relationship" between her rejection of Mr. Brinson and his subsequent treatment of her and her ultimate termination. Plaintiff then filed the instant action.

 Upon its initial review of the record, this Court determined that the record revealed proof suggestive of discrimination on the basis of sex. The Court also found that at the agency level the government made no attempt to show an absence of discrimination, but rather, the onus appeared to have been placed on the plaintiff to affirmatively prove sex discrimination. The Court therefore remanded the case to the agency for additional administrative hearings wherein the government would have the burden to affirmatively establish the absence of discrimination by the clear weight of the evidence, citing Hackley v. Johnson, 360 F. Supp. 1247 (D.D.C. 1973).

 On remand, the second Hearing Examiner found that the agency had not met its burden. Additionally, the Examiner concluded that plaintiff "was discriminated against because of sex in the acts of her immediate supervisor in intimidating, harassing, threatening and eventually terminating her." Hearing Examiner's decision of Feb. 21, 1975, at 4-5. The Examiner based his decision on a finding that "Mr. Brinson was of a disposition to and did make personal advances towards [the plaintiff] and that these advances were rejected by [the plaintiff]," id. at 4, and that at that time, May 1972, he could not conclude that Mr. Brinson was "truly experiencing work performance and/or conduct difficulties with [the plaintiff]." Id. at 3. In concluding his analysis, the Examiner stated:

A review of the proposed termination notice and of Mr. Brinson's testimony concerning the merits of the reasons for complainant's termination shows that such reasons were not serious deficiencies in work performance and/or conduct. It appears that many of the reasons were based on incidents in which good supervision would have been preventative, and that good supervision was not forthcoming because of the situation which Mr. Brinson had created by his attempts at fostering a personal relationship with complainant and the subsequent rejection.
Because all of the incidents occurred or were noted within a time period of June to August 1972, it is difficult to accept the premise that complainant, who had been a relatively good employee during the first six months of her employment, would have so many deficiencies noted in such a short time period. The alleged enumerated deficiencies occurring simultaneously with a rejection of personal advances based on sex, lends itself to an inference of sex discrimination. In my opinion, the agency has not sufficiently produced evidence ...

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