Huey v. Bowen

• Decision Date: 08 February 1989
• Docket Number: No. 87-0579-CV-W-JWO.,87-0579-CV-W-JWO.
• Citation: 705 F. Supp. 1414
• Parties: Reginald T. HUEY, Plaintiff, v. Otis R. BOWEN, M.D., Secretary of Health and Human Services, Defendant.
• Court: U.S. District Court — Western District of Missouri

705 F. Supp. 1414

Reginald T. HUEY, Plaintiff, v. Otis R. BOWEN, M.D., Secretary of Health and Human Services, Defendant.

No. 87-0579-CV-W-JWO.

United States District Court, W.D. Missouri, W.D.

February 8, 1989.

Elmer C. Jackson, Jr., Kansas City, Kan., for plaintiff.

E. Eugene Harrison, Asst. U.S. Atty., Kansas City, Mo., for defendant.

MEMORANDUM AND ORDERS

JOHN W. OLIVER, Senior District Judge.

I

This case pends on plaintiff's motion for partial summary judgment and defendant's cross-motion for summary judgment. For the reasons that follow, we find and conclude that plaintiff's motion for partial summary judgment should be granted and that any ruling on defendant's motion for summary judgment should be deferred until the parties have complied with this Court's order directing further proceedings.

II Background

On June 20, 1978, the plaintiff filed a formal EEO complaint alleging that since August 15, 1976 he had been discriminated against on the basis of race (black) and reprisal when he was denied promotion to twelve positions within different components of the then Department of Health, Education, and Welfare.¹ Following an EEO investigation and proposed disposition, the Director of the EEO for the Agency issued its final decision finding no discrimination or reprisal with respect to all allegations raised in the complaint.

Plaintiff appealed to the EEOC. The Commission remanded the complaint to the Agency for further investigation. After remand, the supplemental investigation revealed that records relating to all of the vacancies named in plaintiff's complaint had been "purged." Therefore, much of the information requested by the EEOC could not be obtained.

In its second final decision, the Agency rejected plaintiff's allegations with respect to his nonselection for seven of the positions as untimely. As to the remaining five positions and reprisal allegations, the Agency again found no discrimination or reprisal.

Plaintiff again appealed to the EEOC. The EEOC's February 28, 1986 decision affirmed the Agency's rejection of the untimely allegations. See Exh. A attached to Deft's Memo. in Oppos. to Plt's Motion for Partial S.J. filed Sept. 28, 1988 at 4-5 (hereafter September 28, 1988 filing). The EEOC then reviewed plaintiff's timely allegations concerning his nonselection of the remaining five positions. Id. at 5-10.

The EEOC first found that plaintiff had established a prima facie case of race discrimination with respect to the plaintiff's nonselection for four of the five positions. Id. at 6 (applying test set forth in McDonnell Douglas Corp. v. Green, 411 U.S. 792, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973)). Having articulated a prima facie case, the EEOC shifted the burden to the Agency to articulate a legitimate, nondiscriminatory reason for its challenged action.²

The EEOC found that the Agency, which maintained that it selected the best qualified candidates for the positions, had met its burden of production. The EEOC then shifted the burden to plaintiff to demonstrate that the reasons offered by the Agency were not its true reasons, but rather were a pretext for discrimination. Id. at 6-7 (citing Texas Dept. of Community Affairs v. Burdine, 450 U.S. 248, 256, 101 S.Ct. 1089, 1095, 67 L.Ed.2d 207 (1981)).

The EEOC found, however, that as the result of the Agency's purging of relevant documents, the record was insufficient for purposes of allowing plaintiff a full and fair opportunity to establish pretext on the part of the Agency. The EEOC further found that the Agency had failed to make any effort to reconstruct the record. Id. at 7-8 (citing Insurance Corp. of Ireland v. Compagnie Des Bauxites De Guinee, 456 U.S. 694, 102 S.Ct. 2099, 72 L.Ed.2d 492 (1982), and Hammond Packing Co. v. Arkansas, 212 U.S. 322, 29 S.Ct. 370, 53 L.Ed. 530 (1909)).

The Commission therefore applied the "adverse inference rule" and presumed that had the requested information been produced, it would have shown that the Agency's articulated reasons were not its true reasons "but were rather pretexts for discrimination." Id. at 8. The EEOC concluded that the Agency had discriminated against plaintiff on the basis of his race when it failed to select him for any of the four positions. Id.

As to the fifth position for which plaintiff was not selected, the Agency asserted that he was deemed unqualified for the position. For the reasons noted above, the Commission again applied the "adverse inference" doctrine and found that had the requested evidence been produced, it would have established that plaintiff was in fact qualified but not selected because of his race. Id. at 8.

As relief, the EEOC ordered that plaintiff "shall be promoted to the position of his choice" from the five positions "which he was discriminatorily nonselected."³ Id. The promotion was to be "made immediately, and was to be made retroactive to the date that particular position was originally filled." Id. at 8-9. The Agency was also ordered to award appellant back pay and "any other incidental benefits which he would have received but for the discrimination he suffered." Id. at 9.

The Agency timely filed a motion with the EEOC to reopen and reconsider the EEOC's February 28, 1986 decision. The Agency's request was granted in part and denied in part in the EEOC's May 26, 1987 decision. (Exh. B attached to Deft's Sept. 28, 1988 filing). As to the EEOC's application of the "adverse inference" doctrine and its finding of discrimination, the EEOC affirmed its earlier decision. Id. at 6-9.

As to the relief ordered in its February 28, 1986 decision, the EEOC granted the Agency's request to reopen "insofar as it concerns the placement of plaintiff in a specific position of his choice." Id. The Commission found that the position chosen by plaintiff, Executive Assistant to the Principal Regional Official, along with the other four positions named in plaintiff's complaint had changed "in the scope and description" during the nearly ten years that had passed from the time plaintiff originally sought such positions. Id. at 8-9. The EEOC, therefore, found that "the circumstances surrounding this matter have rendered this portion of its previous order inappropriate." Id. at 9. The EEOC modified paragraph A of its previous order "to provide that the agency is ordered to retroactively promote plaintiff to a Grade 12 position substantially equivalent to any of the five positions which appellant was discriminatorily denied." Id. at 9.

Following the EEOC's May 26, 1987 decision, plaintiff filed the above-entitled action. Plaintiff's complaint seeks to enforce the EEOC's finding that the Agency had, in fact, discriminated against plaintiff on the basis of his race when it failed to select him for the five positions at issue. Plaintiff's complaint, however, seeks relief beyond that which the EEOC awarded in its May 26, 1987 decision.⁴

III Legal Issues

Plaintiff's motion "moves the Court for a partial summary judgment on the issue of discrimination in the above case for the reason that the pleadings ... show that there is no genuine issue as to any material fact on the issue of whether or not the plaintiff was discriminated against and that such issue has been previously determined by the EEOC and that the plaintiff-movant is entitled to judgment on this issue as a matter of law." To support his motion, plaintiff primarily relies on the EEOC's May 26, 1987 decision and the Eleventh Circuit's decision in Moore v. Devine, 780 F.2d 1559, 1560 (11th Cir.1986) (requiring district courts "to enforce final EEOC decisions favorable to federal employees when requested to do so.").

Defendant, in its suggestions in opposition concedes that "if the plaintiff seeks merely to enforce a favorable EEOC decision, the Court is bound by the EEOC's decision." Deft's Sept. 28, 1988 filing at 33-34 (citing Moore v. Devine, 780 F.2d 1559, 1564 (11th Cir.1986). The Agency contends, however, that plaintiff "is not asking the Court to enforce the decision of the EEOC, but rather, to grant him relief over and above the relief which he was given by the EEOC. Therefore, any trial held in this case would have to be de novo, on both issues of liability and relief."⁵ Deft's Dec. 2, 1988 reply brief at 9 (citing Chandler v. Roudebush, 425 U.S. 840, 860, 861-64, 96 S.Ct. 1949, 1959, 1959-61, 48 L.Ed.2d 416 (1976); Haskins v. United States Dept. of the Army, 808 F.2d 1192, 1199 (6th Cir.), cert. denied, ___ U.S. ___, 108 S.Ct. 68, 98 L.Ed.2d 32 (1987); Bartel v. United States Federal Aviation Administration, 664 F.Supp. 669 (E.D.N.Y.1987).

The suggestions in support and in opposition to plaintiff's motion for partial summary judgment reveal that a question of law has been raised as to whether this Court is precluded from determining the adequacy of the EEOC's ordered relief unless this Court first conducts a trial de novo on the EEOC's liability finding.

After reviewing the briefs filed by the parties and after conducting its own research, the Court is satisfied that the Eighth Circuit has not addressed the precise question presented before the Court. The Fourth Circuit, however, under circumstances similar to the instant case, has addressed the question presented. We find that decision to be controlling under the circumstances of this case. See Pecker v. Heckler, 801 F.2d 709 (4th Cir.1986).

In Pecker the EEOC found that the plaintiff was the victim of racial discrimination and retaliation and ordered the EEOC to promote plaintiff retroactively to a Deputy Manager position, GS-10 or, if that position was not available, to a position with similar benefits. Id. at 710.

The plaintiff brought suit in district court to enforce the EEOC order. Plaintiff's suit also contested the adequacy of the relief granted by the EEOC. The district court found the relief awarded by the EEOC was sufficient and granted summary judgment in favor of defendant. Id. at 709-10.

On appeal, the Pecker court...