Mallard v. Claytor
| Decision Date | 31 January 1978 |
| Docket Number | Civ. A. No. 76-1340. |
| Citation | 471 F. Supp. 16 |
| Parties | Ike C. MALLARD, Plaintiff, v. W. Graham CLAYTOR, Jr., Defendant. |
| Court | U.S. District Court — District of Columbia |
June D. W. Kalijarvi, Washington, D. C., for plaintiff.
Stephen S. Cowen, Asst. U. S. Atty., Washington, D. C., for defendant.
FINDINGS OF FACT AND CONCLUSIONS OF LAW
The above-entitled cause came on for trial before the Court, sitting without a jury, pursuant to Title VII of the Civil Rights Act of 1964, as amended, by the Equal Employment Opportunity Act of 1972, 42 U.S.C. § 2000e-16, which gave federal employees in executive agencies and other named agencies and departments a cause of action for discrimination in all personnel actions affecting such employees on account of race, color, religion, sex, or national origin. The Act also gave federal employees a cause of action for retaliatory action by employers because of the employees' active opposition to defendant's unlawful employment practices.
The plaintiff presented his entire case in chief on January 23-24, 1978. The defendant did not move to dismiss, pursuant to Fed.R.Civ.P. 41(b), admitting at closing argument that the plaintiff had proved a prima facie case of discrimination. Both parties having stipulated before trial to admit the entire administrative record into evidence, the trial was concluded on January 26, 1978. Upon consideration thereof, and the testimony and exhibits received in evidence, including the arguments of counsel for the parties, the Court, this 31st day of January, 1978, makes the following findings of fact and conclusions of law as required by Fed.R.Civ.P. 52(a).
1. Plaintiff Ike C. Mallard is a 48 year old, black male, residing at 1213 Emerson Street N.E., Washington, D. C. 20017.
2. Plaintiff entered on duty (by means of a lateral transfer) at the Naval Weapons Engineering Support Activity (NAVWESA) on August 22, 1970, as a Physical Science Technician, GS-8.
3. Plaintiff was promoted on November 1, 1970, to GS-802-9, Engineering Technician, in the Physical Standards Branch (Section 54-Optics), Eastern Standards Laboratory (ESA-52), Metrology Department (ESA-5), NAVWESA.
4. On September 16, 1973, plaintiff was promoted to GS-802-11, Engineering Technician, in the Physical Standards Branch (Section 54), Eastern Standards Laboratory (ESA-53), Metrology Department (ESA-5), NAVWESA.
5. Plaintiff was promoted to Senior Engineering Technician GS-802-12 on February 13, 1977.
6. Plaintiff has received satisfactory ratings for his performance each year since 1970.
7. Plaintiff has been responsible for calibrating all types of optical instruments since 1970.
8. Plaintiff was appointed to the NAVWESA Equal Employment Opportunity (EEO) Committee prior to 1975.
9. Plaintiff acted as Chairman of the NAVWESA EEO Committee prior to 1975.
10. Plaintiff was appointed an Equal Employment Opportunity Counsellor on June 28, 1975.
1. The defendant agency is the United States Department of the Navy. The specific organizational units involved are the Naval Weapons Engineering Support Activity (NAVWESA), and NAVWESA's subunits, the Metrology Department (ESA-5), Eastern Standards Laboratory (ESA-53), and the Physical Standards Branch.
2. At all times relevant to this complaint plaintiff was supervised by Jack Fath (white male) GS-830-13, head Physical Standards Branch; William J. Johnson (white male) Supervisory Engineering Technician GS-12; David B. Spangenberg (white male), Supervisory Mechanical Engineer, GS-802-14; and head of the Eastern Standards Laboratory Division (ESA-53); Joseph P. Fincutter (white male), GS-830-15, head Metrology Department ESA-5; and James C. Paxton, GS-801-15, Technical Director, NAVWESA. At all times relevant to this complaint, plaintiff knew and/or worked with Earl Morris (white male) Supervisory Engineering Technician GS-12.
1. As of the date defendant agency requested a GS-802-12, Senior Technician, position be created, in the Physical Standards Branch, Eastern Standards Laboratory (ESA-53), Metrology Department (ESA-5) NAVWESA (February 21, 1975), minority males were "obviously underrepresented" in NAVWESA, as defined by internal Department of Navy regulations. On April 3, 1975, the NAVWESA Equal Employment Opportunity Policy and Program Report stated:
This same report states that of 55 GS-802 engineering technicians only 5 (9%) are black. It further required that because of underrepresentation of minorities (and women) in grades GS-9-15 in NAVWESA every effort will be made to increase minorities in grades 9-12.
2. On August 30, 1975, the date this complaint arose at the administrative level NAVWESA, ESA-5 and ESA-53 employed the minority personnel as displayed on Chart 1.
3. In 1974 and 1975 blacks in NAVWESA received 4.2% and 1.6% respectively of all promotions at the GS-9 level and above:
4. As of August 30, 1975, there were 90 supervisory level employees in NAVWESA, of whom 88 or 98% were white and 2 (2%) were black.
5. As of August 30, 1975, there were no black supervisors in either the Metrology Department or the Eastern Standards Laboratory Division.
6. As of August 30, 1975, there was only one black GS-12 senior engineering technician in the Metrology Department and the Eastern Standards Laboratory Division, and no black GS-12 senior engineering technician in the Physical Standards Branch.
7. As of July 19, 1976, NAVWESA had the following employment profile:
NAVWESA STAFFING ANALYSIS
White Minority
GS 9/10 38 (81%) 9 (19%)
GS-11 88 (90%) 9 (10%)
GS-12 140 (95%) 8 ( 5%)
GS-13 114 (95%) 7 ( 5%)
GS-14 39 (100%) -
GS-15 13 (100%) -
8. The average grade of white and black employees decreased between December 31, 1974, and July 19, 1976:
AVG. GRADES WHITE BLACK
Dec. 31, 1974 12.2 8.1
Aug. 30, 1975 11.0 7.7
April 7, 1976 10.7 7.3
9. White employees of NAVWESA, ESA-5 and ESA-53 received the majority of promotions above GS-11 from January 1974 to date.
10. The Court finds the statistics introduced by the defendant unpersuasive. The Census Report compiled in 1969 is not strong evidence of the situation in 1975, when the facts in the complaint arose. Furthermore, the statistics introduced only reflect the male population, while no sex discrimination is alleged here. Moreover, the statistics that the defendant relies on for grade level breakdowns is GS-11, while the plaintiff's main allegation alleges discrimination against him in not being promoted to GS-12.
1. On February 21, 1975, Mr. Fincutter, head of Metrology Department and Mr. Paxton, Technical Director NAVWESA submitted a request for Personnel Action (SF-52) to create and advertise for competitive selection a new position entitled Senior Engineering Technician, GS-802-12. The position required that the selectee have primary responsibility for at least three (3) of 18 technical areas for which the Physical Standards Branch is responsible.
2. The purposes in creating a new GS-12 position in the branch and of requiring that the successful selectee be expert in at least three technical areas as...
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