Dual v. Griffin

• Decision Date: 18 November 1977
• Docket Number: Civ. A. No. 76-1385.
• Citation: 446 F. Supp. 791
• Parties: Joseph F. DUAL, Sr., Plaintiff, v. Robert E. GRIFFIN, Defendant.
• Court: U.S. District Court — District of Columbia

446 F. Supp. 791

Joseph F. DUAL, Sr., Plaintiff, v. Robert E. GRIFFIN, Defendant.

Civ. A. No. 76-1385.

United States District Court, District of Columbia.

July 28, 1977.

On Motion to Amend Judgment November 18, 1977.

Roger C. Spaeder, Washington, D. C., for plaintiff.

William E. Hill, Sp. Asst. U. S. Atty., Washington, D. C., for defendant.

MEMORANDUM

GASCH, District Judge.

This is an action under Title VII of the Civil Rights Act of 1964, as amended by the Equal Employment Opportunity Act of 1972, 42 U.S.C. §§ 2000e, et seq. Plaintiff Joseph F. Dual, Sr., is a black male, fifty-nine years of age, who is employed by the defendant General Services Administration ("GSA") in Region 3 of its Public Buildings Service ("PBS"), as a Buildings Management Specialist. His complaint of racial discrimination charges the defendant agency with wrongfully denying him a promotion to the position of Supervisory Labor Management Relations Specialist in 1975 and with undertaking certain extreme measures of discriminatory retaliation against him after he subsequently filed an employment discrimination complaint in connection with that promotion denial. Upon the Court's full consideration of the evidence adduced at trial, and for the reasons briefly set forth below, the Court finds that plaintiff has failed to prove that his non-selection for the supervisory position in question was discriminatory, but that he has amply proven discriminatory retaliation by the agency and is therefore entitled to full relief appropriate to that latter claim.

FACTUAL BACKGROUND

The evidence presented in this case is clear and for the most part undisputed. Plaintiff has been employed by GSA since 1962,¹ when he was hired as a carpenter. In 1969, he accepted an opportunity offered by PBS's Chief of Buildings Operation to enter a position in which he would render personal and vocational counseling services to GSA employees.² From 1969 through 1975, under the position title of "Buildings Management Specialist,"³ plaintiff performed in this field with a measure of diligence and ability which, according to every available indication, was nothing short of exemplary. During the course of that period he received three promotions, advancing from the GS-7 level to that of GS-12. He also received numerous awards and commendations in recognition of his excellent service, including three special achievement cash awards and six perfect attendance awards covering the years 1967-1973.⁴ Moreover, plaintiff's performance ratings during those years reveal that his work was repeatedly evaluated as "exceptional," "outstanding," and "superior" by his supervisors.⁵

In 1972, plaintiff's duties were further expanded as part of efforts initiated by GSA to make formal equal employment opportunity counseling available to its employees. A memorandum distributed throughout the Public Buildings Service at that time announced GSA's new Equal Employment Opportunity Program and declared as follows: "Mr. Joseph Dual is our Equal Employment Opportunity Counselor for PBS and is available for personal consultation regarding EEO, or any personal and financial problems you may be encountering."⁶ Thereafter, plaintiff devoted a substantial portion of his time to EEO counseling, often meeting with GSA employees on his own time when the workload so demanded.⁷

The events giving rise to this action originated in 1974, with the first of three recent structural reorganizations of the Public Buildings Service. At that time, a Management Operations division was established within PBS, containing five newly-created staff elements.⁸ Under this new structure, the counseling functions performed by plaintiff and his co-workers were placed in a staff element known as "Unions and EEO Administration." One of plaintiff's co-workers, one Jerry Kaplan, was selected to be temporary supervisor of this staff and in early 1974 was detailed to that position.⁹

More than a year later, in August of 1975, this supervisory position was the subject of a formal vacancy announcement. The only two candidates to compete for this position, plaintiff and Kaplan, were evaluated by a screening panel, found "qualified" and "highly qualified" respectively,¹⁰ and were referred to Acting Director of the Management Operations Division Robert R. Kane, the designated selecting official. In October, 1975, Kaplan was selected for permanent assignment to this position.¹¹

After the selection was announced, plaintiff instituted an EEO action which ultimately led to his filing a formal complaint of race discrimination on January 14, 1976.¹² At approximately this same time, plaintiff was advised by Kaplan and Kane that his counseling duties could not "justify" a GS-12 position and that he would have to accept downgrade to a GS-11 counseling position or else a lateral transfer to a Buildings Management Specialist position which involved no counseling.¹³ Plaintiff expressed interest in neither alternative, but was never even given the opportunity to choose between them. On June 1, 1976, after plaintiff returned to work from an emergency hospitalization, he was ordered to report to the Custodial Management Section of GSA's Buildings Services Branch where he was assigned to a custodial staffing position.¹⁴ This new job, which plaintiff has performed since June of 1976, involves no counseling work or any responsibilities related to plaintiff's duties between 1969 and 1975. Rather, it appears to involve the numerical calculation and verification of staff requirements for various GSA operations.¹⁵ Plaintiff admits that he has little aptitude for this type of work and that his performance in this assigned position has suffered accordingly. Indeed, the parties readily agree that despite what appears to be plaintiff's sincere efforts to meet the unaccustomed requirements of his new job, his performance has in no way resembled in quality his previous work as a counselor.¹⁶ In short, he is a most unhappy man doing sub-par work in an area totally alien to his interests, his background, and his well-recognized talents.

THE PROMOTION CLAIM

Plaintiff's first contention is that he was wrongfully denied the supervisory position awarded to Jerry Kaplan. He maintains that he was qualified to serve in that job, but failed to receive it only because of race discrimination. He points out that Kaplan, a white man, was temporarily detailed to the position in question for approximately one and one-half years prior to their formal competition for that position, a period far in excess of Civil Service limitations.¹⁷ It is also significant, plaintiff argues, that each of the men temporarily detailed as supervisors of the other four new staff elements of the Management Operations Division were ultimately selected as permanent supervisors.¹⁸ Each of those men, like Kaplan, is white.¹⁹

On the basis of the evidence presented, the Court readily agrees with plaintiff that he was indeed qualified for the position sought. In fact, the review panel which evaluated both him and Kaplan concluded as much.²⁰ Hence, the Court finds that plaintiff established a prima facie case on this claim, whereupon the burden shifted to the defendant agency to show a legitimate, nondiscriminatory reason why plaintiff did not receive the position. See McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802-03, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973).

The Court finds further, though, that the defendant agency has adequately met this rebuttal burden. The evidence adduced by both sides reveals that plaintiff was certainly not more qualified than Kaplan for the position sought and according to at least two very important criteria — labor management expertise and supervisory experience — was apparently less qualified.²¹ In light of this evidence, this Court cannot quarrel with the review panel evaluation of plaintiff and Kaplan as "qualified" and "highly qualified," respectively,²² nor can it conclude that the selection of Kaplan over plaintiff lacked a nondiscriminatory basis.

In essence, the crux of plaintiff's case on this promotion claim is that his competitor was afforded the opportunity to both obtain general supervisory experience and to get on an "inside track" toward the position in question through a temporary assignment to that position which was of illegal duration.²³ In pressing this claim, he places almost exclusive reliance upon Kaplan's illegal detail and upon the fact that this questionable personnel practice was also employed to the benefit of the "temporary" supervisors in each of the other new staff elements of the Management Operations Division.²⁴ Yet plaintiff has failed to present any evidence suggesting that this practice discriminated against him, or against others, on racial grounds.²⁵ Nor has he offered any evidence tending to prove that the reasons justifying the Kaplan selection were merely a "pretext" for such discrimination. See McDonnell Douglas Corp. v. Green, supra, at 804-05, 93 S.Ct. 1817. Hence, while the Court is sympathetic to the fact that plaintiff was placed at a distinct competitive disadvantage by virtue of Kaplan's unduly long interim appointment,²⁶ it discerns no basis upon which it can view this irregularity as amounting to a Title VII violation.²⁷ Accordingly, plaintiff's promotion claim must fail.

THE RETALIATION CLAIM

Separate and apart from his challenge to the Kaplan selection, plaintiff also challenges GSA's treatment of him subsequent to his initiating an EEO action in connection with his non-selection. He claims that he has been singled out by his superiors, particularly Kaplan and Kane, and treated in a manner totally unbefitting a man of his background and proven abilities. The sum and substance of the defendant agency's conduct toward him since December of 1975, he maintains, amounts to discriminatory retaliation within the meaning of 42 U.S.C. § 2000e-3(a).

The evidence supporting this claim is substantial. Plaintiff...