Pettit v. United States

• Decision Date: 19 December 1973
• Docket Number: No. 253-72.,253-72.
• Parties: George D. PETTIT v. The UNITED STATES.
• Court: U.S. Claims Court

488 F.2d 1026 (1973)

George D. PETTIT v. The UNITED STATES.

No. 253-72.

United States Court of Claims.

December 19, 1973.

Alvin Dwight Pettit, Washington, D. C., atty. of record, for plaintiff.

LeRoy Southmayd, Jr., Washington, D. C., with whom was Acting Asst. Atty. Gen. Irving Jaffe, for defendant.

Before COWEN, Chief Judge, and DAVIS, SKELTON, NICHOLS, KASHIWA, KUNZIG and BENNETT, Judges.

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

NICHOLS, Judge:

Plaintiff is a black who is employed at the Aberdeen Proving Grounds at Aberdeen, Maryland, and is a classified Federal Civil Service employee, Engineer Human Factors in the Human Engineering Laboratory (HEL), Aberdeen Proving Grounds. He brings suit to recover for his losses resulting from the Government's failure to promote him because of racial discrimination practiced by its employees.

Plaintiff's case is distinguished from racial discrimination cases previously heard by this court in that he seeks to recover not only back pay, but also either compensation for future losses or to be promoted to that position he would have attained, but for "racial discrimination". Jurisdiction is asserted under 28 U.S.C. § 1491, which provides as follows:

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, * * * To provide an entire remedy and to complete the relief afforded by the judgment, the court may, as an incident of and collateral to any such judgment, issue orders directing restoration to office or position, placement in appropriate duty or retirement status, and correction of applicable records, and such orders may be issued to any appropriate official of the United States. * * * (Supp. II, 1972).

This plaintiff relies on Executive Order No. 10722, 3 C.F.R. 1954-1958 Comp., p. 384 (1957); Executive Order No. 10925, 3 C.F.R. 1959-1963 Comp., p. 448 (1961); Executive Order 11114, 3 C.F.R. 1959-1963 Comp., p. 774 (1963); Executive Order 11162, 3 C.F.R. 1964-1965 Comp., p. 215 (1964); Executive Order 11246, 3 C.F.R. 1964-1965 Comp., p. 339 (1965), now Executive Order 11478, 3 C.F.R. 1966-1970 Comp., p. 803 (1969); and the Regulations of the Civil Service Commission, 5 C.F.R. §§ 4.2 and 713.202. These provisions explicitly require all Government agencies to offer their employees equal opportunities in all respects without regard to race.

The present controversy originated in April 1967. Plaintiff as an Electronic Engineer, GS-11, Step 7, filed a complaint alleging that he was denied promotion to GS-12 solely because of his race. The complaint was investigated by Earl R. Haag, Deputy Equal Employment Opportunity Officer. Mr. Haag, in his Summary of Investigation concluded that Mr. Pettit's complaint was baseless.

Plaintiff requested a formal hearing. The Hearing Officer, William J. Bivens, concluded in his voluminous Statement of Findings of Fact and Recommendations that "Mr. Pettit's failure to be promoted from GS-11 to GS-12, was not the result of racial discrimination, but rather because Mr. Pettit did not merit a promotion." However, he went on to note that Mr. Pettit was denied equal employment opportunity in the following particulars:

* * * * * *

b. The display of Confederate flags in Mr. Pettit\'s work area had the effect of saying to him and fellow employees that he was not accepted as an engineer on the same basis and with the same professional status as white engineers. The incident at the Ballistic Research Laboratory when Mr. Pettit was attempting to make a point in a panel discussion during a television program and Mr. McCain used his lighter which played Dixie and the people laughed had the effect of including Mr. Pettit as the object of their laughter as he was the only Negro present and as he was attempting to speak at the time. This was a rude and demoralizing act which was embarrassing to Mr. Pettit, a Negro engineer, in the presence of his white colleagues, * * *

c. References to Mr. Pettit and Mr. Gentry or statements to them as "boys" did not accord them the same professional recognition as given to white professionals, * * *

d. Failure to provide Mr. Pettit the same facilities and treatment respecting desk telephone instruments and position of name on routing slip as provided to white professionals was a denial of equal professional status and as such a denial of equal employment opportunity, * * *

Also he found instances where other black employees at HEL were denied equal employment opportunity, specifically with respect to promotions.

Plaintiff's complaint apparently had been triggered by the decision of a Mr. Erickson, a supervisor, in January 1967, to recommend the promotion of plaintiff's white fellow workers Kurtz, Emery and Randall. The first two were shortly thereafter promoted from GS-11 to GS-12 in competitive personnel actions. Randall's promotion is less relevant as it was only from GS-9 to GS-11, plaintiff's grade, so he could not have considered himself in contention for it. By the competitive system, the personnel officer prepared a slate of names of persons shown by computerized data to be well qualified. The supervisor chose a name from this slate. Employees did not know whether their names were on the slate, nor the reasons therefor. The system was found by Mr. Bivens to induce poor morale in anyone passed over as he could not know how or why. This was the competitive promotion system. The plaintiff here also complained and still complains that three lateral transfers by which he was moved from one organizational subdivision to another, in 1964, 1966 and 1968, were motivated by a desire to remove him from competition for anticipated competitive promotions. The record makes it doubtful whether a lateral transfer would have that effect.

On October 31, 1969, Hearing Officer Bivens retired from Government service. Thereafter John H. Vogel was appointed as Successor Hearing Officer in order to evaluate the prior hearing Officer's Findings of Fact and Recommendations in light of plaintiff's rebuttal testimony. Mr. Vogel in his Supplementary Statement of Findings of Fact and Recommendations as the Successor Hearing Officer, concurred in his predecessor's Findings of Fact and Recommendations.

The Findings of Fact and Recommendations of the Hearing Officer and the

Successor Hearing Officer were modified by Headquarters, United States Army Materiel Command (AMC), and a copy of said modifications was sent to plaintiff with a letter dated June 23, 1970, signed by Major General Leo B. Jones, Chief of Staff. The relevant portions of the Modification of the Findings of Fact and Recommendations of the Hearing Officer and the Successor Hearing Officer in the Equal Opportunity Complaint of Mr. George D. Pettit, concluded as follows:

* * * * * *

2. The evidence disclosed that there were three Negro employees at HEL who left the employment of the Labs due, in part, to evidence of the absence of further promotion opportunity at this activity. There is further evidence that Mr. Pettit would not take the same course of action that the other Negro employees took to alter their situation, i. e., take employment elsewhere. Mr. Pettit was an activist in working to integrate the schools in Harford County, he stayed and fought for equality and his constitutional rights rather than accept the status quo or move to an area where his rights would have been provided for him without conflict. Whether he should have stayed and pursued his efforts to break the patterns of exclusion is not relevant to this case, the results of his efforts are.

* * * * * * 4. a. Evidence of racism runs through the substance of testimony relating to the treatment of black employees under the direct or indirect supervision of Dr. John Weisz. Dr. Weisz appeared to be oblivious to the needs of his minority group employees and impervious to the acts of discrimination practiced by subordinate supervisors such as Erickson, McCain, Randall and Cruse. * * *

b. Hearing testimony and evidence disclosed still another case in which a Negro employee was deprived of equal opportunity for promotion. * * *

c. The finding of the Hearing Officer that "Negro professionals previously employed at HEL left to seek and obtain employment elsewhere because equal employment opportunity for advancement was not accorded them at HEL" is borne out by the evidence. (Statement of Findings of Fact and Recommendations, 300) That appropriate action needs to be taken to reverse this situation is evident. There can be no separation of the actions of HEL in failing to promote Negroes, who subsequently took other employment where their talents were recognized, and the instant case of the black employee who stayed and attempted to change the system.

d. The evaluation of Mr. Pettit\'s performance in assigned work projects showed that of eleven assigned projects he performed at a level above average or excellent in three; average in two, marginally satisfactory in four and unsatisfactory in two. Consideration must be given to the environment in which this performance occurred. If we accept the conclusion that discrimination was practiced by Pettit\'s supervisors, then we must recognize that a harmonious, cooperative relationship could not exist between the complainant and his colleagues. His performance would have to be weighted in some manner in order to overcome the adverse conditions of his work environment. (All above emphasis supplied by plaintiff.)

* * * * * *

The Recommendations of the Army read as follows:

In view of the discriminatory actions to which Mr. Pettit has been subjected by his supervisors, he should be given preferential consideration for promotion to the next GS-12 vacancy within Human Engineering Laboratories provided he is among the best qualified candidates referred. Further,

...