Shaw v. Library of Congress, Civ. A. No. 79-0325.

• Decision Date: 14 September 1979
• Docket Number: Civ. A. No. 79-0325.
• Parties: Tommy SHAW, Plaintiff, v. LIBRARY OF CONGRESS et al., Defendants.
• Court: U.S. District Court — District of Columbia

479 F. Supp. 945

Tommy SHAW, Plaintiff, v. LIBRARY OF CONGRESS et al., Defendants.

Civ. A. No. 79-0325.

United States District Court, District of Columbia.

September 14, 1979.

Sara Ann Determan, David C. Kohler, Hogan & Hartson, Washington, D. C., for plaintiff.

Robert M. Werdig, Jr., Asst. U. S. Atty., Washington, D. C., for defendants.

MEMORANDUM

OBERDORFER, District Judge.

I

Plaintiff is a black employee of the Library of Congress ("The Library"). In 1976 and 1977 he formally complained to Library officials that the Library had failed to promote him from GS-13 to GS-14 because, among other reasons, it had failed to validate and correct its allegedly discriminatory job selection criteria and procedures. On August 16, 1978, Library officials executed a settlement agreement with plaintiff which recited that the Library was "uncertain whether its failure to use validated procedures in its selection process involved in those positions for which the plaintiff applied constitutes an unjustified, unwarranted or discriminatory personnel practice for which restitution is provided by law."¹ Plaintiff's Exhibit 1, filed February 1, 1979, at 1. In settlement the Library agreed "to continue its good faith effort to validate its employee selection procedures to the extent required by law as expeditiously as possible within its available resources and personnel," and to assign plaintiff to a "new position with the primary responsibility of implementing the Library's validation program." Id. at ¶¶ I.A., B. The Library further agreed to assign at least two competent professional staff members to assist plaintiff in his new work. In specific consideration for plaintiff's withdrawal of his administrative complaint and for undertaking his new responsibilities, the Library agreed to promote plaintiff to GS-14 and to make the promotion retroactive to January 18, 1977 with back pay and with grade increases

provided the Comptroller General determines that the Library may grant such retroactive promotion and backpay under the facts of this case.

Id. at ¶ II.C. The question to be put to the Comptroller General was whether, in settling a discrimination complaint such as plaintiff had made, the Library has legal authority to make a retroactive promotion with back pay without first making a formal determination that there was in fact discrimination.² The agreement did not articulate the various sources of statutory authority about which the Library sought the Comptroller's advice.

When on August 16, 1978 the Library inquired of the Comptroller General, however, it effectively limited the inquiry to advice as to the Library's authority under the Back Pay Act, 5 U.S.C. § 5596 (1976). The August 16 letter conspicuously failed to ask the Comptroller General's advice about the Library's authority under Title VII to award back pay and promote retroactively in the absence of a finding of discrimination, and the Comptroller treated the inquiry as so limited.³ Thus, on November 2, 1978, the General Counsel of the General Accounting Office responded to the Associate Librarian of Congress, stating the opinion that:

The Back Pay Act requires a finding by an appropriate authority that an unjustified or unwarranted personnel action has occurred and that "but for" that action, the employee would have been promoted.

Plaintiff's Exhibit 2, filed February 1, 1979. The General Counsel's November 2 letter declined to advise about the Library's authority under Title VII, noting that since 42 U.S.C. § 2000e-16(b) (1976) gives

the Librarian of Congress separate authority to enforce Title VII of the Civil Rights Act with respect to employees of the Library, we do not express our opinion as to whether such a remedy would be authorized in this case under Title VII.

Id.

Thereafter when plaintiff attempted through counsel to discuss the Library's authority under Title VII referred to in the General Counsel's letter, he was finally rebuffed by a January 4, 1979 letter from the Associate Librarian of Congress. This suit followed.

II

The matter is now before the Court on cross-motions for summary judgment. Those motions and the supporting memoranda frame the narrow questions left unanswered by the GAO General Counsel: whether the Library, in settling employment discrimination complaints, is authorized by Title VII to award retroactive promotion with back pay without formally finding itself guilty of discrimination; and, if so, whether it may, consistently with the statute, adopt regulations that preclude it from exercising that authority, that is, that preclude it even from considering an award of back pay in the settlement negotiation process.

The cross-motions are ripe for decision. The Library does not seriously advance the August 16, 1978 settlement agreement as a bar to the action.⁴ Suffice it to say therefore that the correspondence between the Library, the GAO General Counsel and the plaintiff's counsel reveal mistaken legal and factual assumptions underlying the settlement agreement which neutralize its possible effect as a bar.⁵ The Library was operating as if its authority were circumscribed by the Back Pay Act and by the Library's regulations issued pursuant to Title VII. Since, as will be developed, that assumption is erroneous, the agreement based on it is without force and effect as a bar to plaintiff's invocation of whatever power the Library has under Title VII to award retroactive promotion and back pay.

Furthermore, the settlement agreement does not eliminate the case or controversy here because the Library did not perform the agreement. The settlement agreement contemplated a GAO ruling on the Library's authority to award back pay and promote retroactively, regardless of its statutory source. The plaintiff was obviously interested in the Library's authority, not some technical advice about the precise basis for it. The Library inquired of the Comptroller General about the Library's authority under the Back Pay Act, but not its authority under Title VII.⁶ Thus, any waiver of legal rights that plaintiff agreed to in consideration of the Library's promises, see Plaintiff's Exhibit 1, at ¶ IIIC, was vitiated by the Library's failure to carry them out.

III

For reasons to be stated, the Court concludes on the merits that Title VII creates in the Library legal authority to award retroactive promotion with back pay to an employee who in good faith claims that he has suffered discrimination in employment, without formally deciding the merits of the discrimination charge.⁷ As a corollary the employee has a right to require the Library to recognize and exercise this conciliation and settlement authority with which Congress endowed it in Title VII.⁸

In 1975, Congress made Title VII applicable to the Library, having made that Title applicable to the Executive Branch departments and independent agencies in 1972. The 1975 Act gave the Library all the responsibility and authority with respect to employment discrimination previously imposed and conferred upon other government agencies in 1972, responsibility and authority closely paralleling that exercised by private employers since 1964. The plain language of Title VII authorized retroactive award of back pay to correct discrimination. 42 U.S.C. § 2000e-16(b). Moreover, from the beginning of federal employment discrimination enforcement, conciliation has been a first principle, and flexibility of methods a key. This is evident from the legislative history. For example, the House Report accompanying the Civil Rights Act, in a passage quoted and relied upon by the Supreme Court in the recent case of United Steelworkers v. Weber, ___ U.S. ___, 99 S.Ct. 2721, 61 L.Ed.2d 480 (1979) stated:

No bill can or should lay claim to eliminating all of the causes and consequences of racial and other types of discrimination against minorities. There is reason to believe, however, that national leadership provided by the enactment of Federal legislation dealing with the most troublesome problems will create an atmosphere conducive to voluntary or local resolution of other forms of discrimination.

H.R.Rep.No.914, 88th Cong., 1st Sess. (1963), at 18, quoted in United Steelworkers v. Weber, supra, 99 S.Ct. at 2728 (emphasis supplied by the Weber Court).

The public policy favoring amicable settlement of all disputes to reduce tension between the parties and to reduce the workload of courts operates with maximum force and effect in the context of employment discrimination. See, e. g., United States v. Allegheny-Ludlum Industries, Inc., 517 F.2d 826, 849-50 (5th Cir., 1975). The Library is before the Court in this case as an employer rather than as an administrative agency or a mini-EEOC. If the Library had been a private employer, it could not seriously have claimed to lack power to award back pay and retroactive promotion to an employee threatening to sue on account of employment discrimination unless and until the employer had found that it had discriminated. See, e. g., United Steelworkers v. Weber, supra. Similarly, if a dispute, such as the one underlying this case, had come to court and been settled without any admission or adjudication of discrimination, there could be no doubt about a court's power to enforce the settlement. See, e. g., United States v. Allegheny-Ludlum Industries, supra. The Library concedes its authority to award such relief if it should make a formal determination of discrimination. The authorities are legion that Congress and the courts intended employers, private and public (including the Library), to have and to exercise broad authority to remedy employment discrimination. See, e. g., United Steelworkers v. Weber, supra; Alexander v. Gardner-Denver Co., 415 U.S. 36, 44, 94 S.Ct. 1011, 39 L.Ed.2d 147 (1974); 42 U.S.C. § 2000e-16(b); S.Rep.No.415, 92nd Cong., 1st Sess. 15 (1971). Devices to achieve these objectives are freely available in court, at the administrative level and...