985 F.2d 143 (4th Cir. 1993), 92-1316, Morris v. Rice

Docket Nº:92-1316.
Citation:985 F.2d 143
Party Name:Dec. P 42,002 James B. MORRIS, Plaintiff-Appellant, v. Donald B. RICE, Secretary of Air Force, Defendant-Appellee.
Case Date:January 29, 1993
Court:United States Courts of Appeals, Court of Appeals for the Fourth Circuit

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985 F.2d 143 (4th Cir. 1993)

Dec. P 42,002

James B. MORRIS, Plaintiff-Appellant,


Donald B. RICE, Secretary of Air Force, Defendant-Appellee.

No. 92-1316.

United States Court of Appeals, Fourth Circuit

January 29, 1993

Argued Oct. 27, 1992.

Edward Harold Passman, Passman & Kaplan, P.C., Washington, DC, argued, for plaintiff-appellant.

Maury S. Epner, Asst. U.S. Atty., Baltimore, MD, argued (Richard D. Bennett, U.S. Atty., on brief), for defendant-appellee.

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Before NIEMEYER and HAMILTON, Circuit Judges, and YOUNG, Senior United States District Judge for the District of Maryland, sitting by designation.


NIEMEYER, Circuit Judge:

We are presented with the novel procedural question of whether a district court, conducting a de novo review of the remedy portion of an Equal Employment Opportunity Commission (EEOC) decision in a race discrimination case, is bound by factual findings of the EEOC that support its finding of liability or, stated otherwise, whether the court may reconsider EEOC-found facts insofar as they relate to the remedy issues. The question is significant to a plaintiff who is a federal employee or federal job applicant because an EEOC finding of discrimination is binding on a federal agency, and the plaintiff may seek a limited review of the EEOC's remedy without risking a de novo review of its finding of liability. In this case the district court, presented with a fact found by the EEOC to support its finding of discrimination, reconsidered and found the fact differently in reviewing de novo the appropriate remedy. The court did so, however, without disturbing the EEOC's discrimination finding, which remained supported by the facts. Because we conclude that the district court's reconsideration of facts relevant to the appropriate remedy was proper on a review de novo and that the district court's factual findings were not clearly erroneous, we affirm.


In January 1987, James B. Morris, a black male who was employed as an electronics technician by Westinghouse Electric Corporation in Linthicum, Maryland, applied for an open position with the United States Air Force office, located at the Westinghouse facility, as a Quality Assurance Specialist (Electronics), GS-9. The Air Force selecting official, George Rinard, considered eight applicants drawn from three separate lists that had been obtained by an Air Force personnel employee, Barbara Miller. One of these lists, a "Certificate of Eligibles" issued by the United States Office of Personnel Management (OPM), contained the names of Morris, who had been evaluated under a numerical rating system as a "93," and Connie Taylor, a white female, who had a rating of "96." Before Rinard conducted any interviews, he considered candidates from the OPM list and offered Taylor the position, but she declined it. Rinard then interviewed Morris and the other candidates between April 23 and 28, 1987, and gave them his own ratings. One white male was given a "9," and another an "8" (on a scale of 10); the only other black applicant, Gregory Gills, was given a "7." Morris was given a "3." On April 29, offers were made to the two white male applicants, both of whom declined. Rinard did not extend any further offers. Rather, the position was downgraded to an internship at the GS-5 level and eventually filled by hiring a white female.

Morris filed a complaint with the EEOC, charging racial discrimination under Title VII of the Civil Rights Act of 1964, (codified as amended in 42 U.S.C. § 2000e, et seq.), and seeking appointment to the position, with back pay and intervening promotions. Following a hearing, the EEOC Administrative Law Judge (ALJ) found that the Air Force had racially discriminated against Morris, but concluded that he was not entitled to instatement and back pay. The ALJ found by clear and convincing evidence that Gills, the other black candidate, was more qualified and that he, not Morris, would have been appointed to the position had there been no discrimination. Accordingly, Morris was awarded only costs and attorney's fees. See 42 U.S.C. § 2000e-5(g)(2) (precluding instatement for an individual refused employment for a reason other than discrimination, and made applicable to the armed forces through § 2000e-16(d)); see also Patterson v. Greenwood School Dist., 696 F.2d 293, 295 (4th Cir.1982) (denying retroactive promotion where plaintiff was victim of discrimination, but other more qualified candidates for same promotion were also discriminated against).

The ALJ based her finding of discrimination primarily on an inconsistent application

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of the subjective qualifications and criteria used in the selection process. However, one factual finding supporting the conclusion of discrimination involved the date that the OPM list of eligible candidates was returned. This "Certificate of Eligibles" had to be returned to the OPM once a decision was made as to a listed applicant. The ALJ found that this list had been returned on April 27, two days before the offers were made to the two white male candidates. The return of the list meant a decision not to offer Morris the position had already been made and exposed as pretextual one of the Air Force's contentions--that Morris would have been considered further if the position had not been transformed into an internship.

The ALJ's decision was adopted in toto by the Appellate...

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