Smith v. Secretary of Navy
| Decision Date | 30 January 1981 |
| Docket Number | No. 79-1877,79-1877 |
| Citation | 659 F.2d 1113 |
| Parties | 24 Fair Empl.Prac.Cas. 1638, 25 Empl. Prac. Dec. P 31,533, 212 U.S.App.D.C. 229 Earl SMITH, Jr., Appellant, v. SECRETARY OF the NAVY. |
| Court | U.S. Court of Appeals — District of Columbia Circuit |
Appeal from the United States District Court for the District of Columbia (D.C. Civil Action No. 78-0953).
Christopher A. Myers, Asst. U. S. Atty., Washington, D. C., with whom Charles F. C. Ruff, U. S. Atty., and Michael W. Farrell and Robert E. L. Eaton, Jr., Asst. U. S. Attys., Washington, D. C., were on brief, for appellee.
Before McGOWAN, Chief Judge, and WRIGHT and MacKINNON, Circuit Judges.
Opinion for the court filed by Circuit Judge J. SKELLY WRIGHT.
Although much of the argument in this court focused on whether the plaintiff-appellant in this case was a "prevailing party" entitled to consideration for attorney's fees, 1 resolution of that issue ultimately depends on a deeper question: whether Title VII 2 creates a cause of action for a person who is the victim of a discriminatory job-performance evaluation, but who cannot demonstrate that the evaluation constituted the cause of his being denied a specific job or promotion. We hold that Title VII does provide a cause of action in this case, and that a plaintiff who is the subject of illegal evaluations is entitled, at a minimum, to have any discriminatory records purged from his personnel files. We hold, further, that a plaintiff who wins such relief is a "prevailing party" eligible for attorney's fees under the statute. Because the District Court held otherwise, 3 its decision must be reversed.
The appellant in this case, Earl Smith, Jr., is a black male employed as an Electronics Engineer, GS-13, at the Naval Electronics Systems Command (NAVELEX). 4 Smith joined the Department of the Navy as an engineer in 1967. In 1973 he was also designated by the Department as an Equal Employment Opportunity (EEO) counselor, 5 a capacity in which he served until 1977. Since January 1975 Smith's primary supervisor, responsible for evaluating his engineering but not his EEO work, has been Mr. George Bednar, who is white. 6
In the fall of 1975 appellant Smith applied for two jobs that would have constituted promotions. In September he applied for the vacant position of Production Administrator at the Naval Sea Systems Command (NAVSEA), Department of the Navy. 7 Shortly thereafter he sought the vacant job of Assistant Data Systems Electronics Engineer with the National Aeronautics and Space Administration (NASA). 8 George Bednar gave supervisory appraisals of Smith's work in connection with Smith's applications for both jobs. Smith got neither. In both cases the ratings given him by Bednar were too low for Smith to rank among the most qualified candidates.
In conjunction with Smith's candidacy for the NAVSEA vacancy, Bednar completed a qualifications inquiry or employee appraisal form. 9 Bednar rated Smith "average" in 12 categories and stated that he had no basis for rating appellant in three others. Bednar categorized Smith as "below average" in keeping abreast of new developments in his field, in effectiveness in presenting ideas, and in "self-reliance." In a space provided for additional information, Bednar wrote that "Mr. Smith lets other non work functions take to (sic) much of his time and the work suffers therefore self reliance was scored low." 10 A copy of the NAVSEA evaluation form was apparently entered in appellant's personnel file at NAVELEX. 11
Smith's application to NASA also triggered a request for a supervisory evaluation, to which Bednar again responded. Speaking over the telephone, Bednar rated appellant as "average" in 17 of 23 categories, "above average" in two, and "less than average" in four. 12 Bednar was also recorded as describing appellant as having "no potential for promotion at NAVELEX." 13 NASA again contacted Bednar by telephone on a second occasion, but this time Bednar refused to offer an oral evaluation. 14
Some time after he had filed his NAVSEA application, Smith visited the NAVSEA personnel specialist to inquire about his prospects. During the course of the conversation, Smith was allowed to see his supervisor's appraisal. 15 Upset by what he saw, Smith confronted Bednar, who, Smith testified, told him that the critical reference to "non work functions" was based on Smith's devotion of time and energy to his EEO duties. 16
Smith similarly telephoned the personnel specialist at NASA to attempt to ascertain his rating there. He was advised that he was not in the "highly qualified" group because of his supervisor's appraisal. 17 Smith did not discuss his NASA appraisal with Bednar.
Smith once again became the subject of an evaluation by Bednar when the latter completed a performance rating for the period January 1975 to January 1976. 18 Although Smith was rated as "fully satisfactory" in most categories, he received no "outstanding" ranks from Bednar. By contrast, Smith's EEO supervisor classified him as "outstanding" in both counselling and complaints negotiations. 19
Smith responded to the sequence of supervisory appraisals by filing two informal complaints in which he alleged that Bednar's evaluations reflected racial discrimination and illegal reprisal for his EEO counselling. 20 He subsequently filed two formal complaints at the administrative level. In the first, dated April 14, 1976, Smith alleged illegal reprisal and racial discrimination with respect to the supervisory rating accompanying his NAVSEA application. 21 The second, filed July 2, 1976, made similar allegations concerning his NASA application. 22 After investigating the complaints the defendant agency issued two proposed dispositions, both of which appellant found unacceptable. He therefore requested hearings before a Civil Service Complaints Examiner, who consolidated the complaints and convened a joint hearing on February 10, 1978. 23
At the conclusion of the hearing, the Examiner recommended a finding of reprisal with respect to the NAVSEA supervisory ratings. 24 He based this recommendation on the conclusion that Bednar had penalized Smith for his work as an EEO counselor:
Mr. Bednar's appraisal resulted from his frustration and resentment at the loss of control he had over complainant during the time he spent performing EEO duties and * * * but for the resentment complainant would have received a somewhat better appraisal. ( 25
The Examiner's report adduced no evidence to support Bednar's assertion that Smith had devoted "to (sic ) much of his time" to EEO matters or otherwise permitted his EEO functions to distract him improperly from his engineering work. On the contrary, the Secretary of the Navy later described the Examiner's investigation as having revealed that Bednar "was not familiar with the duties and responsibilities of an Equal Employment Opportunity Counselor," 26 that Smith's job description should be "amended to include Equal Employment Opportunity Counselor duties of 25%, with position descriptions of other counselors amended accordingly," 27 and that Bednar should be scheduled for EEO training classes. 28 Without assigning any fault to Smith, 29 the Examiner found that Bednar's critical appraisal "resulted from improper consideration of (Smith's) EEO duties." 30 The Examiner stated plainly that the critical NAVSEA rating occurred, not because Smith was black, but because of his participation in the EEO program. 31
Concerning Smith's NASA complaint, the Examiner found neither racial discrimination nor illegal reprisal. 32 In the NASA case, in which there was no specific criticism of Smith for devoting too much time to EEO functions, the Examiner apparently credited Bednar's testimony to the effect that Smith "was considerably behind schedule in completing his assignments and that even when his EEO duties are taken into consideration complainant did not perform as well as could be expected." 33
At the conclusion of his report the Complaints Examiner reached the question of corrective action for the wrongful and punitive NAVSEA evaluation. Finding that Smith would not have received the NAVSEA position even if more favorably evaluated, the Examiner recommended against awarding the priority consideration for promotion that Smith had requested. 34 However, consistent with his finding that the NAVSEA evaluation reflected "improper consideration" of Smith's devotion of time to EEO functions, the Examiner determined that the offending assessment should be "removed from any official personnel records and destroyed." 35
In the final administrative decision in the case, issued on April 10, 1978, the Secretary of the Navy concurred in the findings, decision, and corrective action recommended by the Complaints Examiner. 36 The Secretary declined, however, to award Smith attorney's fees as the prevailing party in a Title VII action.
Dissatisfied with the administrative resolution, including the denial of attorney's fees, appellant brought suit in the District Court. 37 Once again he alleged reprisal and discrimination in connection with both his NAVSEA and his NASA applications. He also presented a claim that he was denied training courses because of his race and because of his involvement with the EEO program.
At the conclusion of a trial de novo the District Court found as a fact that Smith had not been denied training courses because of either racial discrimination or illegal reprisal. 38 The court also held that Smith's complaint regarding his NAVSEA and NASA applications had failed to state even a prima facie case of employment discrimination cognizable under Title VII. 39 It reached this conclusion...
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