DeGrace v. Rumsfeld

• Decision Date: 30 January 1980
• Docket Number: No. 79-1221,79-1221
• Citation: 614 F.2d 796
• Parties: 21 Fair Empl.Prac.Cas. 1444, 22 Empl. Prac. Dec. P 30,621 Robert DeGRACE, Plaintiff, Appellant, v. Donald RUMSFELD, etc., et al., Defendants, Appellees.
• Court: U.S. Court of Appeals — First Circuit

Page 796

614 F.2d 796

21 Fair Empl.Prac.Cas. 1444,

22 Empl. Prac. Dec. P 30,621

Robert DeGRACE, Plaintiff, Appellant, v. Donald RUMSFELD, etc., et al., Defendants, Appellees.

No. 79-1221.

United States Court of Appeals First Circuit.

Argued Oct. 2, 1979.

Decided Jan. 30, 1980.

Thayer Fremont-Smith, Boston, Mass., with whom Eric W. Wodlinger, Choate, Hall & Stewart, and Mark S. Brodin, Boston, Mass., were on brief, for plaintiff, appellant.

Carolyn S. Grace, Asst. U. S. Atty., Boston, Mass., with whom Edward F. Harrington, U. S. Atty., Boston, Mass., was on brief, for defendants, appellees.

Before CAMPBELL and BOWNES, Circuit Judges, and BONSAL, ^* Senior District Judge.

LEVIN H. CAMPBELL, Circuit Judge.

Plaintiff, formerly employed as a civilian firefighter at the Naval Air Station, South Weymouth (NASSW), brought this asserted class action against the Secretary of Defense and others under 42 U.S.C. § 2000e-16. ¹ He complained of racially motivated harassment while so employed and alleged that his discharge was the product of racial discrimination.

The district court certified a class consisting of all past, present, and future black civilian employees, applicants, and deterred applicants for civilian employment at NASSW, and the case was tried as a class action. On the second day of this six day trial plaintiff indicated that he did not seek reinstatement but only money damages. After trial was completed but before a decision had been rendered, the district court decertified the class stating plaintiff's interests were not "such as to cause him to fairly and adequately protect the interests of the class." Respecting plaintiff's individual claim, the district court held he was not entitled to damages on account of his discharge, ruling that he was justifiably discharged for excessive absenteeism "without authorization or substantiated excuse" and that the discharge decision "was not influenced . . . by any racial consideration."

While thus finding the actual discharge was without bias, the court took a different view of conditions existing within the NASSW fire department during plaintiff's tenure. The department, it found, was "infected with pervasive racism," and NASSW had not satisfied its obligation to correct the offensive conduct of plaintiff's fellow employees which "was or should have been obvious to the supervisory personnel on the base." The court concluded, however, that because 42 U.S.C. § 2000e-5(g) provides only for reinstatement, back pay, and other equitable relief, and because plaintiff was discharged for good cause, he was not entitled to compensatory or punitive damages for whatever humiliation and anguish were sustained as a result of these conditions.

Plaintiff now argues the court erred (1) in sustaining the discharge and denying damages therefore, (2) in ruling that as a matter of law plaintiff could not recover compensatory or punitive damages for racism directed at him while he was employed, and (3) in decertifying the class action.

I.

It is not disputed that plaintiff absented himself from work for a very considerable period of time, from November 17, 1974 through January 21, 1975, with the exception of December 21, 1974 when he did report for duty. Nor is it disputed that excessive unauthorized absenteeism would be a proper ground for discharging an employee. Plaintiff argues, however, that his discharge was illegal first because Commander Scarfato was actually motivated by racial animus in discharging him the district court's finding to the contrary being clearly erroneous and second that regardless of Scarfato's actual motives the government violated Title VII by tolerating known discrimination against plaintiff by its own employees discrimination which, under the court's own findings, says plaintiff, prompted the extended absence which led to the discharge.

A.

We review the background leading up to plaintiff's discharge. Plaintiff was first employed at NASSW as a civilian firefighter in June 1971. He was the only black civilian firefighter during his entire time at NASSW. ² At the end of his probationary year plaintiff was discharged from employment for the stated reason that he had not demonstrated qualifications necessary to promote the efficiency of the service. This discharge, which is not the subject of the instant action, was appealed through Civil Service Commission procedures. The EEO Complaints Examiner found that derogatory racial terms had been used in addressing plaintiff and that the opinions of those who had testified against plaintiff, which included his supervisor, Captain Ostlund, "were coloured by hostility and racial prejudice." The examiner recommended that Captain Ostlund and other supervisory personnel be admonished and given supervisory training on sensitivity in human relations and respect for diverse racial groups and that plaintiff be reinstated.

Plaintiff was reinstated in April 1973. While plaintiff was still supervised by Captain Ostlund and Assistant Chief Dowd, another of whom plaintiff had complained, his most immediate supervisor was Captain Mullen into whose platoon he was placed. Captain Mullen had opposed plaintiff's first discharge and seems to have gone out of his way to treat plaintiff fairly. Plaintiff's reinstatement, however, produced some resentment and hostility and the district court so found.

Commencing around the beginning of November 1974 and continuing until plaintiff's discharge, certain troubling events occurred: plaintiff discovered some of his equipment damaged, he was given the "silent treatment" by his co-workers, and he received threatening notes.

At two different times plaintiff found items of his firefighting gear broken, first his crash helmet and then his survival knife. Although plaintiff believes the equipment was deliberately damaged, the district court disagreed and supportably found to the contrary.

Further tension is evidenced by the "silent treatment" accorded plaintiff. Captain Mullen, the supervisor who had opposed plaintiff's first discharge, testified that after an incident in the beginning of November 1974 during which he reprimanded plaintiff and plaintiff responded in an insulting manner, he thereafter spoke to plaintiff only in the line of duty although other firefighters did carry on friendships with plaintiff at that time. By the end of January 1975, however, Mullen was aware that some men felt plaintiff had been telling false tales about them to Commander Scarfato, who had authority over the fire department, and they therefore were not speaking to plaintiff. Plaintiff also described the unfriendly atmosphere and recounted an incident where the crew refused to ride on the vehicle he was driving.

Most serious were the three notes plaintiff found in his locker at NASSW between the middle of November and the end of December 1974. Plaintiff discovered the first one, which reads "Hey boy get your Black ass out Before you don't have one," on November 17, 1974 or so. He found the second sometime during the first week of December and the third toward the latter part of December. The second states, "I don't want you sleeping in the same place as me. Your (sic) dirtier and smellier than a mud turtle, so why don't ya just take a hint and get the fuck out you Black niger (sic)," and the third reads "Niger (sic), If we end up having a fire, you'll be staying in it and getting a lot blacker." While there is no direct evidence who wrote the notes, it can be inferred, and the district court so found, that one or more of plaintiff's co-workers was responsible for them.

Plaintiff testified that the notes left him apprehensive for his safety. He began to have nervous problems, felt ill, experienced fainting spells, and became afraid to go to work. For these reasons, he says, he did not report for duty calling in sick instead. Plaintiff did not, however, provide any medical certification for his absences either contemporaneously or at any time thereafter, including at trial.

Plaintiff, absent since November 19, 1974, did report for duty on December 21, 1974. Commander Scarfato called him to his office and asked for his doctor's note which plaintiff did not have. While plaintiff had, by then, received at least two of the threatening notes, he did not mention them to Commander Scarfato; rather, according to Scarfato, plaintiff stated he was recovered and would be reporting to work from then on. Plaintiff did not again return, ³ however, until January 4, 1975, and it was on that day that plaintiff first informed Scarfato he had been threatened.

Plaintiff testified that he showed photostatic copies of the notes to Scarfato on January 4, 1975 and told him the reason he had been absent was because he "was kind of afraid of the situation that might come up . . . where you need team work in a firefighting situation, and (he) was kind of doubtful whether (he) could have it or not." Upon reading the notes, Scarfato expressed his willingness to call in the Naval Investigating Service (NIS), but, according to Scarfato, plaintiff said he did not want to make a big issue over the notes since he still had to work with the men. Nonetheless, Scarfato informed the base commanding officer of the threatening notes who, as the district court found, ordered an investigation by NIS.

Plaintiff next met with Scarfato and also with Mr. Stevens, the civilian personnel officer, on January 8 or 9, 1975. Plaintiff was then informed that a reassignment, as he had requested on January 4, 1975, was not possible because there were no openings for which he was qualified. Stevens testified that plaintiff was questioned whether his continued absence was still due to illness and plaintiff indicated his primary reason for his current absence was concern over the notes, but, plaintiff added, his fear was not sufficient to prevent his return to duty on his next scheduled tour January 10, 1975. Plaintiff did not return, however, until ...