Guilday v. Department of Justice, Civ. A. No. 4578.
| Decision Date | 31 January 1980 |
| Docket Number | Civ. A. No. 4578. |
| Citation | 485 F. Supp. 324 |
| Parties | Peter W. GUILDAY, Plaintiff, v. DEPARTMENT OF JUSTICE et al., Defendants. |
| Court | U.S. District Court — District of Delaware |
Robert F. Stewart, Jr. of Obermayer, Rebmann, Maxwell & Hippel, Philadelphia, Pa., for plaintiff.
James W. Garvin, Jr., U. S. Atty., Wilmington, Del., Barbara Allen Babcock, Asst. Atty. Gen., Anthony J. Steinmeyer and Paul A. Gaukler, Dept. of Justice, Washington, D. C., for defendants.
In this non-jury action, Peter W. Guilday, the plaintiff, seeks retroactive promotions, back pay, interest, attorneys' fees and costs1 from Leonel J. Castillo, Commissioner of the United States Immigration and Naturalization Service ("INS"). Guilday alleges that INS improperly retaliated against him, rejecting his promotion, for filing with INS an administrative complaint of racial and religious discrimination. Guilday initially sought redress for this alleged discrimination as well.2 On June 20, 1978, this Court dismissed the discrimination issues on procedural grounds.3 Presently before this Court, which heard this case during a week long trial, are both parties' petitions for judgment, along with proposed findings of fact and conclusions of law submitted in support thereof. Since the record discloses that Guilday's employer retaliated against him, this Court finds that he should be promoted and paid retroactively. The following opinion constitutes this Court's findings of fact and conclusions of law as required by Federal Rule of Civil Procedure 52.
The legal basis for Guilday's claim is the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq. (1971). Although originally applicable only to the private sector, this statute was later extended to cover federal employees by the Equal Employment Opportunity Act of 1972. 42 U.S.C. § 2000e-16. Together these statutes prohibit federal agencies from retaliating against their employees for filing discrimination complaints, otherwise, federal employees might be deterred from bringing valid suits to eliminate vestigal discrimination. Williams v. Boorstin, 451 F.Supp. 1117 (D.D.C.1978); Ayon v. Sampson, 547 F.2d 446 (9th Cir. 1976). Possible remedies include the award of retroactive promotion and raises, Richerson v. Jones, 551 F.2d 918 (3d Cir. 1977), necessary to place an employee in as good a position as he would have assumed but for the retaliation. 42 U.S.C. § 2000e-16(d); 42 U.S.C. § 2000e-5(g). Mead v. U. S. Fidelity & Guaranty Co., 442 F.Supp. 114 (D.Minn. 1977).
Over the years, courts evolved a special system for allocating burdens of proof in the highly subjective field of employment discrimination. Under these procedures, Guilday must first make out a prima facie case of employment retaliation. Ostapowicz v. Johnson Bronze Company, 541 F.2d 394 (3d Cir. 1976). This is done by proving that: (1) he participated in the protected activity (filing a discrimination complaint); (2) the employer knew of this participation; and (3) following this participation, he was denied a promotion within such a period of time and in such manner that the Court can infer retaliatory motivation. Brown v. Biglin, 454 F.Supp. 394, 399 (E.D.Pa.1978); Hochstadt v. Worcester Foundation for Experimental Biology, Inc., 425 F.Supp. 318, 324 (D.Mass.1976). If Guilday establishes a prima facie case, the burden of proof shifts to the defendant which may defend itself either by showing that no retaliatory motive ever existed, or that it was insignificant. McDonnell Douglas Corp. v. Green, 411 U.S. 792, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973); Rogers v. E. E. O. C., 179 U.S.App.D.C. 270, 551 F.2d 456 (D.C. Cir. 1977); Ostapowicz v. Johnson Bronze Company, 541 F.2d 394 (3d Cir. 1976); Day v. Mathews, 174 U.S.App. D.C. 231, 530 F.2d 1083 (D.C. Cir. 1976); E. E. O. C. v. E. I. du Pont de Nemours & Co., 445 F.Supp. 223 (D.Del.1978); Beckwith v. Hampton, 430 F.Supp. 183 (D.D.C.1977); Hochstadt v. Worcester Foundation for Experimental Biology, Inc., 427 F.Supp. 318 (D.Mass.1976); Doe v. AFL-CIO Dept. of Organization Region 6, 405 F.Supp. 389 (N.D.Ga.1975).
Guilday began working for INS on June 26, 1961.4 All went well until July 30, 1968, when Guilday, a white Christian,5 filed a complaint that INS favored Blacks and Jews in promotion to desirable positions.6 In August, 1972, he filed a similar charge and he also complained that INS retaliated against him for filing his previous complaint.7 On February 5, 1974, he filed another complaint alleging retaliation only.8 INS hearing officers ultimately decided all these complaints against Guilday9 who then brought this action.
As these complaints were being decided, plaintiff's supervisors evaluated his performance. INS supervisors routinely evaluated their workers during the last months of any calendar year.10 If a worker requested, in order to be considered for certain jobs, his supervisors would evaluate him more often.11 In any evaluation, a worker's immediate supervisor and his next higher supervisor12 would rate him. Supervisors used two INS forms: "Basic" and "Supervisory Performance or Potential".13 Each such form allowed the supervisor, by checking a box and commenting about the employee, to make a recommendation regarding advancement of which there were three possibilities:
Subsequent pages then required an employee's supervisors to characterize certain of the employee's work habits and traits checking columns labelled "very good", "good", "fair" or "don't know".15
Almost without exception, plaintiff's supervisors used his basic appraisal form to "highly recommend" him for promotion.16 On his supervisory appraisal form, however, they often checked Box B. One such official was Vernon Spangrud, plaintiff's immediate supervisor from November 4, 1968 through 1972, and his next higher supervisor from 1972 through 1975.17 Another was Joseph P. McFadden, Guilday's immediate supervisor from July 1, 1973 through 1975, and his next higher supervisor from 1976 through September 25, 1977.18 Spangrud checked Box B on all supervisory appraisals prepared during 1970 through 1973,19 while McFadden checked Box B on supervisory appraisals dated December 7, 1973 and April 8, 1974.20 Plaintiff claims to have received these only mediocre ratings in retaliation for complaining of discrimination.
Guilday particularly cites McFadden's comment upon Guilday's supervisory appraisal form dated December 7, 1973: 21 Guilday also cites Spangrud's comment upon a supervisory appraisal, dated December 12, 1974:
It is my recollection that in my appraisals of Mr. Guilday in prior years, I have always "recommended" him for promotion to a supervisory position and felt that they were honest appraisals. The primary reason as to why I never "highly recommended" him in the past was that Mr. Guilday was quite vocal in making known his complaint that he has not been treated fairly by the promotion policies of this Service because of Civil Rights complaints that he has filed. I disagree completely with Mr. Guilday's prior beliefs that he was being persecuted because of race or religion and feel that he has not always promoted good morale and pride in the Service through the voicing of his feelings to his fellow workers. There is also the possibility that he has not always projected a favorable Service image through public voicings of his beliefs. It appears that Mr. Guilday may have resolved his differences with this Service's promotion policy and as he continues to be a high production officer, continues to be readily available to take on any assignment given him, is well liked by his fellow workers, and sets a good example as a hard worker, I feel that he is now capable of taking on assignments of greater difficulty and responsibility, including those of a supervisory nature. Mr. Guilday received a sustained superior performance award in 1970 for his excellent production record.22
This evidence clearly establishes a prima facie case of retaliation. Guilday filed civil rights complaints of which his supervisors were aware. His supervisors then prepared mediocre, rather than good or excellent, evaluations of Guilday's work. Their comments, tying together Guilday's mediocre rating and his civil rights complaints, indicate that the two events probably were related.
Defendant, however, claims that Guilday's mediocre rating was not retaliatory but was exactly what he deserved. Both McFadden23 and Spangrud,24 claimed that Guilday failed to demonstrate adequate technical knowledge. Spangrud explained that during late 1973, Guilday had worked on projects requiring more formal reporting. Several times thereafter, Amos Edens, Guilday's immediate supervisor, advised Spangrud that Guilday's writing was unsatisfactory.25 McFadden and Spangrud also testified that Guilday failed to display the dedicated attitude of a leader. Guilday sometimes derided INS policies over coffee or during bi-weekly staff meetings which INS recruits attended.26 In addition, McFadden testified that Guilday showed a poor leadership attitude by scrawling something like — "I don't even know why I bother filling out these applications or applying for the job as this promotion policy is a complete farce" — across a form requesting McFadden to prepare an appraisal.27
Defendant claims that these deficiencies alone caused McFadden and Spangrud to give...
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