Chambers v. United States

• Citation: 451 F.2d 1045,196 Ct. Cl. 186
• Decision Date: 15 October 1971
• Docket Number: No. 141-70.,141-70.
• Parties: Madrith Bennett CHAMBERS v. The UNITED STATES.
• Court: Court of Federal Claims

196 Ct. Cl. 186, 451 F.2d 1045 (1971)

Madrith Bennett CHAMBERS v. The UNITED STATES.

No. 141-70.

United States Court of Claims.

October 15, 1971.

Elliott C. Lichtman, Washington, D. C., for plaintiff. Joseph L. Rauh, Jr., Washington, D. C., attorney of record for plaintiff. John Silard, Rauh & Silard, Washington, D. C., of counsel.

LeRoy Southmayd, Jr., Washington, D. C., with whom was Asst. Atty. Gen. L. Patrick Gray III, for defendant.

Before COWEN, Chief Judge, and LARAMORE, DURFEE, DAVIS, COLLINS, SKELTON and NICHOLS, Judges.

ON PLAINTIFF'S MOTION AND DEFENDANT'S CROSS MOTION FOR SUMMARY JUDGMENT

NICHOLS, Judge.

This is a suit for back pay with jurisdiction asserted under 28 U.S.C. § 1491, which provides, inter alia:

The Court of Claims shall have jurisdiction to render judgment upon any claim against the United States founded either upon the Constitution, or any Act of Congress, or any regulation of an executive department, * * *.

* * * * * *

The basis for the action is a finding by the Director of Equal Employment Opportunity for the Department of Health, Education and Welfare (HEW), that plaintiff had been denied equal opportunity for employment because of racial discrimination in violation of Executive Order 11478, 34 Fed.Reg. 12985 (1969). Both E.O. 11478, and its predecessor E.O. 11246, 30 Fed.Reg. 12319 (1965), were promulgated by the President pursuant to 5 U.S.C. § 7151, Supp. V (1965-1969), which provides:

It is the policy of the United States to insure equal employment oportunities for employees without discrimination because of race, color, religion, sex, or national origin. The President shall use his existing authority to carry out this policy.

E.O. 11246 was in effect at the time plaintiff was denied employment, but the following pertinent passages are common to both Orders:

Section 1. It is the policy of the Government of the United States to provide equal opportunity in Federal employment for all persons, to prohibit discrimination in employment because of race, color, religion, sex, or national origin, and to promote the full realization of equal employment opportunity through a continuing affirmative program in each executive department and agency. This policy of equal opportunity applies to and must be an integral part of every aspect of personnel policy and practice in the employment, development, advancement, and treatment of civilian employees of the Federal Government.

Sec. 2. The head of each executive department and agency shall establish and maintain an affirmative program of equal employment opportunity for all civilian employees and applicants for employment within his jurisdiction in accordance with the policy set forth in section 1. * * *

* * * * * *

Sec. 4. The Civil Service Commission shall provide for the prompt, fair, and impartial consideration of all complaints of discrimination in Federal employment on the basis of race, color, religion, sex, or national origin. * *. Procedures for the consideration of complaints shall include at least one impartial review within the executive department or agency and shall provide for appeal to the Civil Service Commission.

* * * * * *

Plaintiff, a black resident of Beckley, West Virginia, had, in early 1965, made application to the district office of the Social Security Administration (SSA) located in that community, for employment as a clerk-typist, GS-4. She was interviewed by District Manager Billings, and he made the customary reference checks. He learned she was technically qualified, and the references were favorable, so he offered her a position. She was unable to accept it because in the meantime she had secured employment at the Beckley Appalachian Regional Hospital (BARH). She worked there for approximately two years, resigning in 1967. At that time she again sought employment with the local SSA office, since a position there was once again available. This time, however, because of a reference report which he considered unfavorable, Mr. Billings refused to recommend her for employment. The report was to the effect that the BARH would not rehire her because "she was a perennial troublemaker who, during her BARH employment, was not averse to frivolously alleging racial discrimination and calling in the NAACP." On March 17, 1967, Mrs. Chambers was advised that she would not be employed. Another black person, Mrs. Chambers' cousin, was hired instead.

Shortly thereafter she filed a complaint with the SSA alleging that she had been denied employment because of racial discrimination. A hearing followed at which witnesses testified for both sides. However, there was no inquiry into plaintiff's charges against BARH because it was considered to be beyond the jurisdiction of SSA. Following the hearing, the examiner filed a report containing summaries of testimony, findings of fact and recommendations. One of the fact findings was that "but for the reference report submitted by the BARH management employees, plaintiff would have been recommended for employment by the District Manager." The Government has not challenged this finding in the instant proceeding and counsel openly conceded the point during oral argument. We are, of course, not bound by this concession if all other facts are to the contrary. Cf. H. B. Zachry Co. v. United States, 344 F.2d 352, 170 Ct.Cl. 115 (1965). However, according to the report, the finding was based on a statement to that effect by Mr. Billings himself, rather than merely an inference drawn by the hearing officer. This is not surprising in view of Mr. Billings' prior knowledge of plaintiff's qualifications and reputation which had previously led him to offer her a position. We think the finding has sufficient support in the record and accept the defendant's "stipulation" if we may so designate it.

The hearing officer also found that Mr. Billings had made no attempt to verify the BARH report but accepted it at face value and assigned it "crucial weight" in his decision. The hearing officer held this to be no error "under existing, applicable policies and regulations," nevertheless, he asked whether employing agencies had an obligation, in view of equal employment policies, to determine the validity of an unfavorable reference report "where, as was the case here, the report is crucial as to the decision to be reached and the potential complainant's counterallegation is that the report reflects discrimination of the kind proscribed by regulations." Notwithstanding his ultimate finding was that plaintiff "was not discriminated against, because of race, by the Social Security Administration and/or the district manager." This report was approved by SSA officials who felt that the hiring of another black person for the same job was proof that there had been no discrimination against plaintiff.

At plaintiff's request the hearing officer's report was reviewed by the Director of Equal Employment Opportunity for HEW, resulting in a reversal of the finding of no discrimination. The Director criticized the hearing afforded plaintiff in the following language:

* * * the SSA District office in Beckley, West Virginia, failed to answer Mrs. Chambers\' charge that it operated in and was unduly influenced by an environment of racial discrimination. Furthermore, it offered no data on the racial composition of its office, its hiring practices or implementation of affirmative action. Mrs. Chambers was indeed discriminated against, and we feel that the SSA personnel involved in this case were cavalier in their denial of the serious charge of racial discrimination.

* * * * * *

* * * the argument that the hiring of one Negro obviates the charge of discrimination is not sufficient of itself to answer the charge that racial factors formed the basis for complainant\'s personal denial of employment with the SSA.

* * * * * *

The question posed by the hearing officer was apparently answered in the affirmative. The Director considered it "significant that Mr. Billings did not even consider that plaintiff might have had reasons for charging racial discrimination and more importantly, within the Federal context, her right to file a complaint of discrimination." The decision, based solely on an analysis of the SSA hearing officer's investigative report was:

* * * that the denial of equal opportunity for employment in the instant case was based substantially on the applicant\'s previous racial discrimination complaint and that such denial constituted a violation of Executive Order 11478 and Department regulations pursuant thereto.

The defendant by its counsel concedes the discrimination. The underlying facts being undisputed, what is involved, evidently, is an interpretation of the Executive Order by the agencies authorized to administer it. Such interpretations have special weight if not arbitrary or capricious, not mere whim or caprice, even if a court might disagree. Houston v. United States, 297 F. 2d 838, 842, 156 Ct.Cl. 38, 46, cert. denied, 371 U.S. 815, 83 S.Ct. 27, 9 L.Ed.2d 56, reh. denied, 371 U.S. 906, 83 S.Ct. 204, 9 L.Ed.2d 167 (1962). This would be true even if, as in Houston, one party was challenging the interpretation. Here, however, both parties in substance agree on it. Certainly it is possible to hold in good faith that it is racial discrimination against an applicant to turn him down because he complained of racial discrimination against him in another job, without inquiry whether such previous complaint was frivolous or bona fide. It is also not mere caprice to hold that discrimination against one black is not necessarily purged by hiring another black. The issue was not Mr. Billings' credibility, nor whether, subjectively, he did or did not entertain bias against minority races. It was, purely and simply, whether his own undisputed account of what he did showed that he had or had not fully performed the duties that E.O. 11246 made incumbent upon him as a hiring official in the Executive...