Salone v USA Petition for Writ of Centiorari

    No. 81-

I n  THE

(Emtrt nf %  Inttai States
October T eem , 1981

A nthony  M. S alone, J e.,

v.
Petitioner,

U nited S tates op A merica, et al.

PETITION FOR A W RIT OF CERTIORARI TO 
THE UNITED STATES COURT OF APPEALS 

FOR THE TENTH CIRCUIT

J ack Greenberg 
J ames M. N abrit, III 
Charles S tephen  R alston* 

Suite 2030 
10 Columbus Circle 
New York, New York 10019

Claude Y. S umner

7546 S.E. 15th Street 
Midwest City, Oklahoma 

73110

Attorneys for Petitioner 

* Counsel of Record
July, 1981



Questions Presented

1 . Did the courts below apply the 
proper standard of proof in deciding 
the relief to which a federal government 
employee was entitled following a deter­
mination that he had been discriminated 
against in violation of Title VII of the 
Civil Rights Act of 1964?

2. Did the court below correctly 
apply the clearly erroneous standard 
of Rule 52(a), F.R. Civ. Proc. , when the 
findings of fact in question were contrary 
to the evidence in the record?

Parties
Anthony M. Salone, Jr., Petitioner.

United States of America,
United States Civil Service Commission, 
Secretary of the Air Force,
Calvin Rees, Arva Jean Massie,
William Tomlinson, Marion H. Bledsoe,

Respondents

l



Questions Presented ................  i
Jurisdiction ....................   2
Statutory Provisions Involved ......  2
Statement of the Case ..............  6
Statement of the Facts .............  12
Reasons for Granting the Writ ....... 22

I. The Question of the Standard
For Determining The Scope of 
Relief After A Finding of Dis­
crimination Is One of Recur­
ring Importance That Should 
Be Resolved by this Court .... 22

II. The Decision of The Court
Below Conflicts with Decisions
of This Court And Other
Circuit Courts .........  28

III. This Case Presents An Impor­
tant Issue Concerning The 
Proper Interpretation of The 
Clearly Erroneous Rule ......  35

Conclusion ....................    39
Appendix .........     la

INDEX
Page

i i



Cases

Albemarle Paper Co. v. Moody, 422 U.S.405 (1975) .................  22,23,34
Baxter v. Savannah Sugar Refining Co.,

495 F.2d 437 (5th Cir.1974) ................ ...... 26,27,32
Board of Trustees of Keene State

College v. Sweeney, 439 U.S. 24 
(1978)   25

Chandler v. Roudebush, 425 U.S. 840
(1976) ........................  8

Day v. Mathews, 530 F.2d 1083 (D.C.
Cir. 1976)........   26,27,30,31

Foster v. Simon, 467 F. Supp. 533
(W.D.N.C. 1979) ...............  26

Franks v. Bowman Transportation Co.,
424 U.S. 747 (1976)............  24,31

Furnco Construction Co. v. Waters,
438 U.S. 567 (1978) ...........  25

Guilday v. Dept, of Justice, 485F. Supp. 324 (D. Del. 1980) --- 26
Hernandez v. Powell, 424 F. Supp.

479 (N.D. Tex. 1977) .....    26

- iii -

Page



Page

Johnson v. Goodyear Tire & Rubber Co.,
491 F.2d 1364 (5th Cir. 1974) .. 32

McDonnell Douglas v. Green, 411 U.S.
792 (1973) .........  25

Marotta v. Usery, 629 F.2d 615 (9th
Cir. 1980)   26,27

Nitterright v. Claytor, 454 F.
Supp. 130 (D.D.C. 1978) .......  26

Richerson v. Jones, 551 F.2d 918
(3rd Cir. 1977) ...............  26

Texas Dept, of Community Affairs v.
Burdine, U.S. 67 L.Ed.2d

" 207 (1981) ...............  25,35,36
United States v. U.S. Gypsum Co., 333

U.S. 365 (1948) ...............  37

Rules and Regulations

Federal Personnel Letter No. 713-44 . 28
43 F.R. 52694 (Nov. 14, 1978) .......  28
43 F.R. 60900 (Dec. 29, 1978) .......  28
Rule 52(a), Fed. R. Civ. Proc. .. 5,12,35
29 C.F.R. § 1613.221 ........    15
29 C.F.R. § 1613.271 ............   28

IV



No. 81-
IN THE

SUPREME COURT OF THE UNITED STATES 
October Term, 1981

ANTHONY M. SALONE, JR.,
Petitioner,

v.
UNITED STATES OF AMERICA, 
et al.

Petition for a Writ of Certiorari to 
The United States Court of Appeals 

For The Tenth Circuit

The petitioner, Anthony M. Salons, 
Jr., respectfully prays that a writ of 
certiorari issue to review the judgment and 
opinion of the United States Court of 
Appeals for the Tenth Circuit entered on 
April 10, 1981. The opinion of the Court 
of Appeals is reported at 645 F.2d 875,



2

and is set out in the Appendix hereto at 
pages 1a-23a. The opinion of the District 
Court of April 25, 1 979, and the judgment
thereon entered May 31, 1979, are un­
reported and are set out in the Appendix 
hereto at pages 24a-40a. The order of the 
District Court denying petitioner's motion 
to alter or amend the judgment is set out 
in the Appendix hereto at pp. 41a-43a.

Jurisdiction
The judgment of the Court of Appeals 

was entered on April 10, 1981. Jurisdic­
tion of this Court is invoked under 28 
U.S.C. § 1254(1).

Statutory Provisions Involved 
Section 717(b),(c), and (d) of the 

Equal Employment Opportunity Act of 1972, 
amending Title VII of the 1964 Civil Rights 
Act, 42 U.S.C. § 2000e-16(b), (c), and (d), 
provide, in pertinent part:



3

(b) Except as otherwise provided 
in this subsection, the Civil Service 
Commission* shall have authority to 
enforce the provisions of subsection 
(a) of this section through appro­
priate remedies, including reinstate­
ment or hiring of employees with 
or without back pay, as will effec­
tuate the policies of this section, 
and shall issue such rules, regula­
tions, orders and instructions as it 
deems necessary and appropriate to 
carry out its responsibilities under 
this section.

( c )receipt 
taken by 
referred 
section 
Commission 
decision or

Within thirty days of 
of notice of final action 
a department, agency, or unit 
to in subsection (a) of this 
or by the Civil Service 

upon an appeal from a 
order of such department,

agency, or unit on a complaint of 
discrimination based on race, color, 
religion, sex, or national origin, 
brought pursuant to subsection (a) of 
this section, Executive Order 11478 or 
any succeeding Executive orders, or 
after one hundred and eighty days from 
the filing of the initial charge

_V Under the President's Reorganization 
Plan No. 1 of 1978, the functions of the 
Civil Service Commission under § 717 were 
transferred to the Equal Employment Oppor­
tunity Commission as of January 1 , 1979.



4

with the department, agency, or unit or 
with the Civil Service Commission on 
appeal from a decision or order of 
such department, agency, or unit until 
such time as final action may be taken 
by a department, agency, or unit, an 
employee or applicant for employment, 
if aggrieved by the final disposition 
of his complaint, or by the failure to 
take final action on his complaint, 
may file a civil action as provided in 
section 2000e-5 of this title, in 
which civil action the head of the 
department, agency, or unit, as 
appropriate, shall be the defendant.

(d) the provisions of section 
2000e-5(f) through (k) of this title, 
as applicable, shall govern civil 
actions brought hereunder.
Section 707 (g) of Title VII of the

1964 Civil Rights Act, 42 U.S.C. § 2000e-
5(g) , provides:

(g) If the court finds that the 
respondent has intentionally engaged 
in or is intentionally engaging 
in an unlawful employment practice 
charged in the complaint, the court 
may enjoin the respondent from engag­
ing in such unlawful employment 
practice, and order such affirmative 
action as may be appropriate, which 
may include, but is not limited to, reinstatement or hiring of employees,



5

with or without back pay (payable by 
the employer, employment agency, or 
labor organization, as the case may 
be, responsible for the unlawful 
employment practice), or any other 
equitable relief as the court deems 
appropriate....
The case also involves Rule 52(a), Fed.

Rules of Civ. Proc.:
Rule 52. Findings by the Court

(a ) Effect. In all actions tried upon the facts without a jury or 
with an advisory jury, the court shall 
find the facts specially and state 
separately its conclusions of law 
thereon, and judgment shall be entered 
pursuant to Rule 58; and in granting 
or refusing interlocutory injunctions 
the court shall similarly set forth 
the findings of fact and conclusions 
of law which constitute the grounds of 
its action. Requests for findings are 
not necessary for purposes of review. 
Findings of fact shall not be set 
aside unless clearly erroneous, and 
due regard shall be given to the 
opportunity of the trial court to 
judge of the credibility of the 
witnesses. ... If an opinion or 
memorandum of decision is filed, it 
will be sufficient if the findings of 
fact and conclusions of law appear 
therein. Findings of fact and con­
clusions of law are unnecessary on



6

decisions of motions under Rule 12 or 
56 or any other motion except as provided in Rule 41(b).

Statement of The Case 
This is the second appearance in this 

Court of this action brought under Title 
VII of the Civil Rights Act of 1964, 
as amended by the Equal Employment Oppor­
tunity Act of 1972, 42 U.S.C. § 2000e-16. 
Petitioner Anthony M. Salone, Jr., the 
plaintiff below, is a Black civilian 
employee of the United States Air Force at 
Tinker Air Force Base in Oklahoma City, 
Oklahoma. This action was commenced in 
1973 after a final decision of the Civil 
Service Commission affirming the decision 
of the Department of Air Force denying his 
claim that he had been discriminated 
against on the basis of race with regard to 
certain employment opportunities, and



7

that he had suffered reprisal because he 
had filed an earlier complaint of discrimi­
nation. During the first administrative 
processing of the complaint a Civil Service 
Commission Complaints Examiner, following a 
hearing, had recommended that the Depart­
ment of the Air Force find that plaintiff 
had been discriminated against and had 
suffered reprisal. (Defendants' Exhibit 1, 
p. 27). Despite this recommendation, the 
Air Force found to the contrary, requiring 
the filing of the present action.

The United States filed a motion for 
summary judgment based solely on the 
administrative record and decision of the 
agency. The District Court granted the 
motion, holding that the plaintiff was not 
entitled to a trial de; novo of his claims 
of discrimination and reprisal. That 
decision was affirmed by the Tenth Circuit 
(511 F. 2d 902 ( 1 975)) and a petition for



8

writ of certiorari was filed in this 
Court. The decision of the court of 
appeals was vacated and the case remanded 
for reconsideration in light of the Court's 
decision in Chandler v. Roudebush, 425 U.S. 
840 (1976), holding that federal employees
are entitled to a trial de novo of their 
claims of discrimination in actions brought 
under Title VII. 426 U.S 917 (1976).

On remand to the District Court the 
case was first returned to the United 
States Civil Service Commission for further 
consideration (Order of Remand, March 28, 
1977; Rec. on appeal, p. 55). The Civil 
Service Commission in turn sent the case 
back to the agency for a new decision. The 
agency again rejected the complaints 
examiner's holding with little elaboration. 
Therefore, a second action was filed in the 
District Court and the two actions were 
consolidated for trial.



9

In March, 1979, a five-day trial was 
held, based on live testimony and documen­
tary evidence, including the full record of 
the administrative processing of the 
complaint. At the trial the United States 
did not contest the fact that plaintiff had 
been discriminated against because of his 
race. Indeed, the government's Proposed 
Findings of Fact specifically so acknowl­
edged.—^ Thus, the primary issue was the 
relief to which plaintiff was entitled.

]_/ The government's proposed findings 
included the following:

4. That the plaintiff has been 
labeled as a troublemaker in his work 
environment because of his filing of 
discrimination complaints and has been 
reprimanded more than usual for his 
mistakes in his job performance.

5. That there existed at Tinker 
Air Force Base at the times complained 
of by plaintiff racial discrimination 
in the performance appraisals, promo­
tions and job assignments of blacks in 
civilian employment.

* * *



10

Plaintiff had consistently urged that 
he should be put in a higher GS level on 
the ground that in the absence of the 
earlier discrimination, he would have 
advanced similarly to comparable white 
employees who had not been discriminated 
against.

The District Court issued an opinion 
holding that plaintiff had been discrimin­
ated against, that he was entitled to be 
retroactively promoted to grade GS-7 as of 
1970 and GS-8, step 1, as of 1972, and was 
also therefore entitled to back pay to make

V  continued
18. That the plaintiff has been 

a victim of racial discrimination in 
his employment at Tinker Air Force 
Base during the times complained of by the plaintiff.

Defendants' Proposed Findings of Fact, pp.
2-3 (Record on Appeal, pp. 79-80).



up the difference between those salaries 
and the salaries received as a GS-5 em­
ployee (Findings of Fact and Conclusions 
of Law, April 25, 1979, App. pp. 32a-34a; 
p. 39a). Subsequently, the Court entered a 
judgment granting a total of $15,544.32 in 
back pay and $5,181.44, or one-third, in 
counsel fees—^ (App. 39a-40a).

A motion to alter or amend the judg­
ment was filed urging that plaintiff should 
have been promoted to higher levels subse­
quent to the GS-8, step 1, promotion in 
1972, since it had not been shown that he 
would not have normally advanced but for 
the discrimination (Rec. on Appeal, pp. 
110). The District Court denied the motion 
to alter or amend, holding that plaintiff-

2/ The court of appeals reversed the 
trial court's ruling on attorneys' fees. 
Therefore that issue is not a subject of 
this petition.



petitioner would not have advanced above a 
GS-8, step 1, in the time since 1972 
because he was "a troublemaker" and his 
work had been unsatisfactory (App. 4 1a- 
43a). On appeal the Tenth Circuit upheld 
these findings as not clearly erroneous 
under Rule 52(a), F. R. Civ. Proc.

Statement of the Facts 
Plaintiff-appellant was hired at the 

Tinker Air Force Base initially in 1947 
as a wage board (or blue collar) employee. 
Following a long period during which he 
had experienced a number of difficulties 
and during which he received few promo­
tions, he filed a complaint of discrimina­
tion in 1967. Shortly afterwards he was 
promoted to GS-5 supply clerk position 
(Series GS-2005) where he remained for 12 
years, until 1979 (See, Def. Exhibit 1, p. 
144; p. 19). After he had received what he



13

regarded to be an unsatisfactory and 
discriminatory performance appraisal he 
filed the present complaint of discrimina­
tion and reprisal.

The complaint was accepted and an 
investigation followed which unearthed 
evidence of general patterns of discrimina­
tion against blacks in the job categories 
in question, of a variety of improper 
employment practices, and of apparent acts 
of reprisal against the plaintiff. Both 
white and black co-workers of plaintiff 
attested that they believed he had suffered 
discrimination and reprisal (See, gener- 
ally, Def. Exhibit 1, pp. 9-10, summarizing 
the affidavits at pp. 76, et seq. ) .
Further, many stated that various super­
visors had branded him a troublemaker 
because he had filed complaints of dis­
crimination in the past. Nevertheless, the



14

local officials at Tinker Air Force Base 
proposed a finding of no discrimination 
(Def. Exhibit 1, pp. 41-43). Plaintiff 
exercised his right to have a hearing 
before a Civil Service Commission com­
plaints examiner, and following that 
hearing, which consumed two days early in 
1973, the complaints examiner issued a 
recommended decision of 23 pages based on a 
record of over 700 pages in which he 
found:

Careful review, study and considera­
tion of the total record compiled in 
this case leads me to conclude that Mr. Salone has been the victim of 
systematic, continuous discrimination 
within the Material Processing Divi­
sion. The evidence is overwhelming 
that because of previous discrimina­
tion complaints which he pursued 
in 1967 and 1970, Mr. Salone has been 
branded as a "troublemaker" and has in 
numerous respects been treated dif­
ferently from whites and, in many 
cases differently from other blacks 
who have not filed discrimination complaints. I_d., p. 19.



15

The Department of the Air Force handed 
down its final decision of little more than 
a page on March 9, 1973, Its entire
discussion of the record and the recom­
mended decision of discrimination was, "The 
entire record of your complaint has been 
carefully reviewed and it has been deter­
mined that the evidence therein does not 
support your allegations of discrimination 
based on race” (Id., p. 6). Despite the 
requirements of the Civil Service Commis­
sion's regulations no further explanation 
was given as to why the detailed findings
of the complaints examiner were summarily 

3 /rejected.—7 As stated above, this result 
precipitated the present action and eventu­
ally culminated in a five day hearing 
before the District Court early in 1979.

3/ See, 5 C.F.R. § 713.221(b)(2), now 29 C.F.R. § 1613.221(b)(2).



-16

At the hearing the Court heard many of 
the same witnesses who provided affidavits 
and who testified at the administrative 
hearing in Mr. Salone's case. These 
witnesses gave testimony fully consistent 
with that given during the administrative 
process. His co-workers unanimously 
testified that Mr. Salone was a good and 
conscientious worker. However, they had 
heard from various persons, particularly at 
the supervisory levels, that he was "a 
troublemaker." Most of those employees 
assumed that referred to the fact, well 
known to everyone, that he had complained 
about racial discrimination. None of his 
co-workers testified either at the trial or 
during the administrative process that they 
themselves thought that Mr. Salone was a 
troublemaker or that he did not perform his 
duties well. (See, e.g.; the testimony in



1 7

the Transcript of Trial at pp. 275, 278,
289—291; 318; 334—335; 339—340). The only 
testimony to the contrary was from super­
visors relating to the period prior to 1972 
(See' e ♦9» > Transcript, pp. 752-53.)

The supervisors charged with discrimi­
nation testified that they had not commit­
ted any discrimination. However, the 
government did not contest that discrimina­
tion had indeed taken place, but rather 
focused on what relief Mr. Salone was en­
titled to. The only testimony or evidence 
relating to the period after 1 972 were 
documents showing that Mr. Salone had per­
formed his duties in a highly satisfactory 
manner, receiving performance appraisals 
in the high nineties on a scale of 100. 
Indeed, in 1976 he was recommended for an 
outstanding performance rating. (Defen­
dants ’ Exhibit 2).



Mr. Salone himself testified that he
believed he could have advanced to the 
GS-14 or 15 level if he had been provided 
equal employment opportunities earlier in 
his career. He specifically noted that his 
qualifications were equal to or superior to 
those of whites who had so advanced. Thus, 
he had more than three years of college 
education as compared to high school 
diplomas held by some of the white super­
visors.

The testimony further showed that at 
Tinker Air force Base it was not necessary 
to apply for positions as they became 
available. Profiles were developed by a 
computer of all employees who had the 
eligibility for positions, and those 
eligible were contacted to find out if they 
were interested in the positions (Tran­
script, p. 235; plaintiff's Exhibit 5, pp.. 
6-7). Mr. Salone had been contacted in the



19

period from 1972 for some GS-6 positions, 
but had declined some on the ground that 
they were dead-ended and could not lead to 
further advancement (Transcript, pp. 
687-88). He had not declined others and 
although he had been considered for a 
number of GS-6 positions he had never been 
promoted to one (Defendants' Exhibit 2).

The District Court, in its denial of 
the motion to alter or amend the judgment, 
found that Mr. Salone was a troublemaker 
and did not perform his duties satisfac­
torily, notwithstanding the absence 
of any testimony to that effect. Indeed, 
these findings were directly contrary to 
the evidence noted above that Mr. Salone 
received high performance ratings in the 
period after 1972, and to the government's 
admissions at trial that he had been 
"labeled as a troublemaker . . . because of



20

his filing of discrimination complaints" 
and that "the plaintiff's performance in 
his job was satisfactory" (Rec. pp. 79 and 
80). In fact, in its original findings of 
fact the district court held that Mr. 
Salone's "performance in his job was 
satisfactory" (App. p. 29a).

Following the trial, Mr. Salone was 
given the position of freight rate special­
ist at the GS-8 level retroactive to 1972. 
As noted by the court of appeals (App. 
p. 12a), the freight rate specialist 
position ranges from grades GS-7 to GS-12 
depending upon the level of responsibility. 
Thus, it is a job series in which promo­
tions to higher levels may be achieved 
because of an increased level of respon­
sibility and good performance without the 
necessity of competitive bidding. (Ibid.)



21

On appeal, the Tenth Circuit pointed 
out that the district court's findings that 
Mr. Salone was a troublemaker and did not 
perform his duties satisfactorily were at 
variance with the government's position at 
trial and to the judge's own finding that 
his job performance was satisfactory. The 
court also noted that the position into 
which petitioner had been placed was one in 
which promotions could be obtained without 
competition (App. pp. 11a-12a). Never­
theless, the court of appeals held that it 
could not be determined what vacancies were 
available and that the district court's 
findings of fact were not "clearly errone­
ous" as they related to further promotions, 
while holding that petitioner was entitled 
to periodic step increases from 1972 
until the present (App. p. 16a).



22

REASONS FOR GRANTING THE WRIT 
This case presents an issue of great 

importance in the enforcement of Title VII, 
viz. , the relative burdens of proof in 
establishing the scope of relief after a 
finding of discrimination. The resolution 
of the issue by the court below conflicts 
with decisions of this Court and with other 
circuits. The decision also presents an 
important issue concerning the proper 
interpretation of the "clearly erron­
eous" rule embodied in Rule 52 of the 
Federal Rules of Civil Procedure.

I.
The Question of the Standard for 
Determining The Scope of Relief After 
A Finding of Discrimination Is One of 
Recurring Importance That Should Be 
Resolved by This Court.______________
In Albemarle Paper Co. v. Moody, 422

U.S. 405 ( 1975 ), this Court held, with



23

regard to the entitlement to back pay after
a finding of discrimination, that:

It is also the purpose of Title VII 
to make persons whole for injuries 
suffered on account of unlawful 
unemployment discrimination . . . .  
Where racial discrimination is con­
cerned, "the [district] court has not 
merely the power but the duty to 
render a decree which will so far as 
possible eliminate the discriminatory effects of the past. . . . ”

442 U.S. at 418.
Thus, when the injury is of an economic char­
acter:

. . . "The injured party is to be
placed, as near as may be, in the 
situation he would have occupied if 
the wrong had not been committed." 
Wicher v. Hoppock, 6 Wall 94, 99(1867) .

422 U.S. at 418-19.
As a result, back pay should be rarely 
denied and only for reasons that are 
"carefully articulate[d] .
421-422, and n. 14.

II 422 U.S



24

Moreover, once discrimination has been 
found, the burden of proof is on the 
employer to demonstrate that the employee 
who has suffered from a violation of the 
law would not have received the employment 
benefit even if there had been no discrimi­
nation. Franks v. Bowman Transportation 
Co., 424 U.S. 747, 772-773 (1976). As this 
Court noted, in language directly applic­
able to the present case:

It is true, of course, that obtaining 
the third category of evidence with 
which the District Court was concerned 
— what the individual discriminatee' s 
job performance would have been but for 
the discrimination— presents great difficulty. No reason appears, however, 
why the victim rather than the perpe­
trator of the illegal act should bear 
the burden of proof on this issue.

424 U.S. at 773, n. 32.
This case, therefore, presents the

opportunity for the Court to establish the
precise parameters of the relative burdens



25

of proof for determining the scope of 
relief after a finding of discrimination 
in a Title VII case, in the same way it has 
in a series of decisions which have clari­
fied the burdens of proof and production 
of evidence in deciding whether there has 
been discrimination in the first instance. 
McDonnell Douglas v. Green, 411 U.S. 792 
(1973); Furnco Construction Co. v. Waters, 
438 U.S. 567 (1978); Board of Trustees of
Keene State College v. Sweeney, 439
U.S. 24 (1978); Texas Dept, of Community
Affairs v. Burdine, _____ U.S. ______, 67
L.Ed.2d 207 (1981). That the issue of the 
standard for determining the scope of 
relief is an important and recurring one in 
the enforcement of Title VII is demon­
strated by the number of decisions in the



26

1/courts of appeals and the district 
5/courts.

The courts of appeals have established 
a variety of rules to govern such determi­
nations. In the present case, as will be 
discussed below, the Tenth Circuit apparent­
ly placed the burden on petitioner to prove 
that he would have received further promo­
tions, despite this Court's holding in 
Franks. The Third Circuit has held that 
the burden is on the employer to establish

4/ Richerson v. Jones, 551 F.2d 918 (3rd 
Cir. 1977); Day v. Mathews, 530 F.2d 1083 
(D.C. Cir. 1976); Baxter v. Savannah Sugar 
Refining Co., 495 F.2d 437 (5th Cir. 1974); 
Marotta v. Usery, 629 F.2d 615 (9th Cir. 1980) .
5/ There have been numerous cases involv­
ing federal agencies alone. See, e.g., 
Nitterright v. Claytor, 454 F. Supp. 130 
(D.D.C. 1978); Foster v. Simon, 467 F. 
Supp. 533 (W.D.N.C. 1979); Guilday v. Dept. 
of Justice, 485 F. Supp. 324 (D. Del. 
1980); Hernandez v. Powell, 424 F. Supp. 479 (N.D. Tex. 1977).



27

by a preponderance of evidence that the 
discriminatee would not have received 
promotions,—/while the Fifth,—/Ninth,—/ 
and District of Columbia Circuits-/have 
imposed a burden on the employer to 
come forward with clear and convincing 
evidence. Moreover, by regulation the 
Civil Service Commission and subsequently 
the Equal Employment Opportunity Commission 
have adopted the District of Columbia 
Circuit's "clear and convincing" standard 
to govern the granting of relief to federal

j>/ Richerson v. Jones, 551 F.2d 918 (3rd Cir. 1977).
]_/ Baxter v. Savannah Sugar Refining Co., 
495 F. 2d 437 (5th Cir. 1974), cited with 
approval in Franks v. Bowman Transportation Co., 424 U.S. at 772.
8/ Marotta v. Usery, 629 F.2d 615 (9th Cir. 1980) .
1 / Day v. Mathews, 530 F.2d 180 (D.C.Cir. 1978.



28

employees in the administrative process.— ^

II.
The Decision of The Court Below 
Conflicts with Decisions of This Court 
and Other Circuit Courts
As recited in the statement of the 

case, after seven years of denials, it was 
only on the eve of trial that the Depart­
ment of the Air Force finally acknowledged 
that Mr. Salone had been discriminated and

10/ 29 C.F.R. § 1613.271 provides that 
where discrimination has been found, a 
retroactive promotion with pay shall be 
granted, "unless the record contains clear 
and convincing evidence that the employee 
would not have been promoted or employed at 
a higher grade, even absent discrimina­
tion." The provision was first adopted by 
the then Civil Service Commission as an 
amendment to 5 C.F.R. § 713.271, and was 
made applicable to cases pending before an 
agency or â court on November 14, 1978, the 
amendments effective date. 43 F.R. 52694 
(Nov. 14, 1978); Federal Personnel Letter 
No. 713-44 (Civil Service Commission, Dec. 
11 , 1978). The new regulation and the 
interprative FPM letter were adopted by the 
EEOC when it assumed jurisdiction over 
federal EEO on January 1, 1979. See, 43 
F.R. 60900 (Dec. 29, 1978).



29

reprised against because of his race and 
because he had earlier filed complaints of 
discrimination. Mr. Salone was denied 
promotions in 1970 and 1972; therefore, the 
district court awarded him promotions 
to a GS —7 and GS —8 back to those years 
respectively. The courts below declined, 
however, to grant full relief, viz. , 
additional promotions which Mr. Salone 
would have received from 1972 to 1979 in 
the absence of the illegal denials in 
the earlier years.

In so ruling, the court of appeals 
evidently placed the burden on Mr. Salone 
to demonstrate that he would have gotten 
the promotions, rather than properly upon 
the defendant-employer to demonstrate that 
the promotions would not have been received 
even if Mr. Salone had been properly 
advanced in the earlier years. Thus,



30

although the court never directly articu­
lated the standard or relative burdens of

11/proof it was applying, it did note 
that the evidence in the record as to 
petitioners' performance was "contradic­
tory" (App. p. 13a). Similarly, it stated 
that there was no evidence in the record 
as to what vacancies might have been 
available to which he could have been 
promoted, despite its earlier notation that 
the job series into which petitioner was 
eventually placed was one in which he could 
have advanced to the GS-12 level without 
competition (Compare App. p. 12a, with 
p. 15a).

11 / Petitioner argued in his brief that 
the court should adopt the "clear and 
covincing evidence" burden imposed on 
employers by the District of Columbia 
Circuit in Day v. Mathews, supra and by 
the Fifth Circuit in a number of cases. 
None of these cases were mentioned or 
discussed by the court below.



31

Thus, the court evidently resolved any 
doubts in the record against petitioner, 
and thus placed the burden of persuasion on 
him, in direct conflict with this Court's 
holding in Franks (see supra), and with 
the rules adopted by the Third, Fifth, 
Ninth, and District of Columbia Circuits. 
The Tenth Circuit's approach here may, for 
example, be contrasted with that taken in 
Day v. Mathews, 530 F.2d 1083 (D.C. Cir.
1976), where the court held that in the 
case of an individual federal employee who 
has established discrimination, it is 
"'impossible . . .  to recreate the past 
with exactitude' . . . precisely because of 
the employer's unlawful action," and, 
therefore, "it is only equitable that any 
resulting uncertainty be resolved against 
the party whose action gave rise to the 
problem." Day v. Mathews, 530 F.2d at



32

1086, citing Baxter v. Savannah Sugar 
Refining Corp. , 495 F.2d 437 ( 5th Cir. 
1974), and Johnson v. Goodyear Tire & 
Rubber Co., 491 F. 2d 1364 (5th Cir. 1974). 
See also, Richerson v. Jones, 551 F.2d 918 
(3rd Cir. 1977).

The placing of the burden of proof 
regarding entitlement to full relief on 
petitioner was particularly inequitable 
under the facts of this case. The promo­
tion to a GS-8 was denied in 1972; in 1973 
a Civil Service Commission complaints 
examiner found unlawful discrimination and 
reprisal against Mr. Salone. If the Air 
Force had accepted that decision then, 
petitioner would have been placed in the 
GS-8 position in 1973 and there would have 
been no doubts as to his work performance 
or whether he would have received promo­
tions in the period from 1973 to 1979 .



33

Instead, the defendant summarily rejected 
the recommended decision, denied discrimi­
nation when this case first went to court 
in 1973, argued against Mr. Salone's right 
to a plenary trial all the way up to this 
Court, and again rejected his claim of 
discrimination when given another oppor­
tunity to resolve it administratively in 
1977.

It was only on the eve of trial in 
February, 1979, seven years after Mr. 
Salone had been denied the promotion, 
that the Air Force admitted that he indeed 
had suffered illegal discrimination and 
reprisal. However, it then argued that it 
was up to Mr. Salone to prove what the 
course of his career would have been if the 
agency had carried out its statutory and 
regulatory duties and properly adjudicated 
Mr. Salone's complaint in the first



34

instance. Since it was solely the failure 
of the Air Force that petitioner did not 
receive the promotions when he should have, 
any doubts as to what would have happened 
should be resolved against it, and 
Mr. Salone should be entitled not only to 
the retroactive promotion to a GS-8 but to 
subsequent career advancement to at least 
a GS-12, the top rung of the job series in 
which he was eventually placed. Only in 
this way will he receive the complete 
relief for the discrimination he suffered 
to which he is entitled and "'be placed ... 
in the situation he would have occupied if 
the wrong had not been committed'". 
Albemarle Paper Co. v. Moody, 422 U.S.
at 418-19.



35

This Case Presents An Important Issue 
Concerning The Proper Interpretation 
of The Clearly Erroneous Rule.
In Texas Department of Community

Affairs v. Burdine, _____ U.S. _____ , 67
L.Ed.2d 207 (1981), this Court found it 
unnecessary to reach the question of the 
proper application of the "clearly errone­
ous" standard of appellate review of 
findings of fact embodied in Rule 52(a), 
F.R. Civ. Proc. , in a Title VII case. 67 
L.Ed.2d 219, n.12. Presently before the
Court is Pullman Standard Co. v. Swint, 
Nos. 80-1190 and 80-1193, in which the 
issue is presented in the context of an 
appellate court's overturning a district 
court's findings of facts. The present 
case provides the opportunity to clarify 
the circumstances under which reliance on 
Rule 52(a) is improper. As noted above,

III.

the Court of Appeals upheld the trial



36

court's denial of full relief by invoking 
the clearly erroneous standard (App. p. 
16a). Petitioner urges that the court 
below was incorrect for two reasons.

First, the court never addressed the 
threshold issue of the legal standard that 
should have governed factual findings. 
As argued above, the burden of persuasion 
that petitioner should not receive full 
relief should have been placed on the 
employer, with any doubts resolved against 
it. The court below noted contradictions 
and uncertainties in the record, but held 
that it was appropriate to resolve them all 
against the plaintiff. As Burdine makes 
clear, if the wrong legal standard was 
applied, then the issue of whether the 
findings were erroneous should not have 
been reached. 67 L.Ed.2d 219, n. 12.

Second, the clearly erroneous standard 
is not intended to insulate findings of



37

fact from any review. Thus, findings must 
be overturned if a reviewing court is 
convinced that they are incorrect. United 
States v. U.S. Gypsum Co.. 333 U.S. 365 
(1948). in the present case, the district 
court denied further promotions on grounds 
that were clearly erroneous, since they 
were not only unsupported, but directly 
contradicted by the record. The issue 
was whether from the period 1972 until 
trial in 1979 Mr. Salone would have ad­
vanced beyond the GS-8 level if he had 
received the promotion to GS-8 in 1972. 
The District Court held that he would not 
have been based on two factual determina­
tions, that he did not perform in his 
position satisfactorily, and that he was "a 
troublemaker".

The record, however, establishes 
unequivocably with regard to the first 
basis that not only did Mr. Salone perform



38

satisfactorily but that he was a superior 
employee. Mr. Salone consistently received 
performance ratings in the high 90's on a 
scale of 100 throughout the period and was 
even nominated for an outstanding perfor­
mance award in 1976. With regard to the 
charge of being "a troublemaker," the 
government itself acknowledged at trial 
that the label had been pinned on Mr. 
Salone by high level management officials 
because he had exercised his right to
file a complaint charging employment

1 2 /discrimination. — ' Thus, the charge was 
part of the pattern of reprisal which in 
itself violated Title VII. Further, the 
testimony relating to his being "a trouble-

12/ The "troublemaker" label has more than 
once been used against Blacks who have 
insisted on their rights. See, Meredith v. 
Fair, 305 F.2d 343, 356-358 (5th Cir. 
1962). Like James Meredith, Mr. Salone is 
"a man with a mission" who will not toler­
ate racial discrimination. Id. at 358.



39

maker" was restricted to the period before 
1972 and consisted almost entirely of his 
fellow employees' attesting to the fact 
that he had been so called because of 
his EEO activities. There was no evidence 
in the record that he was considered a 
troublemaker from 1972-1979, the period 
in question.

CONCLUSION
For the foregoing reasons, the peti­

tion should be granted and the decision 
below reversed.

Respectfully submitted,

JACK GREENBERG 
JAMES M. NABRIT, III 
CHARLES STEPHEN RALSTON 
Suite 2030 
10 Columbus Circle 
New York, New York 10019

CLAUDE V. SUMNER
7546 S.E. 15th Street 
Midwest City, Oklahoma 73110
Attorneys for Petitioner

*Counsel of Record



APPENDIX



- 1 a -

Decision of the Court of Appeals 
April 10, 1981 

No. 79-1929
UNITED STATES COURT OF APPEALS 

TENTH CIRCUIT

ANTHONY M. SALONE, JR.,

Plaintiff-Appellant, 
v.

UNITED STATES OF AMERICA, et al.
Defendants-Appellees.

Appeal from the United States District Court 
For the Western District of Oklahoma (D.C. Nos. Civ.-73-591-E and 78-0091-E, consol.)

April 10, 1981

Before HOLLOWAY, BARRETT and DOYLE, Circuit Judges

DOYLE, Circuit Judge.



2a

The basic question in this case is 
whether the award in a Title VII civil 
rights case, 42 U.S.C. § 2000e et seq., was 
sufficient. The case before us is the 
second appeal following a second trial. 
The first opinion of this court affirmed a 
denial of a trial de novo following adverse 
administrative findings. The Supreme Court 
reversed the affirmance and it directed 
that the case be remanded for trial. See 
426 U.S. 917, 96 S. Ct. 2620, 49 L.Ed. 370 
(1976).

The case was tried in the district 
court and following the trial a judgment 
was entered in favor of the appellant, 
Salone. This appeal asserts that the 
judgment entered was inadequate and that 
the attorneys fees were also inadequate. 
Reversal is sought in these two areas. 
The government, the appellee herein, does 
not have any fault to find with the judg-



3a

ment as entered. It opposes, however, any 
upward modification of that judgment.

The plaintiff-appellant, Anthony 
Salone, has been a civilian employee at 
Tinker Air Force Base in Oklahoma City 
since May 1947. The initial action was 
commenced in 1973 following a final deci­
sion of the Civil Service Commission which 
referred the decision to the Department 
of the Air Force. It had denied Salone' s 
claim that he had been discriminated 
against on the basis of race in regard to 
certain employment opportunities or promo­
tion possibilities. Also denied was 
Salone1s claim that he had suffered re­
prisal because he had filed an earlier 
complaint of discrimination.

As we indicated briefly above the 
United States moved for summary judgment 
upon the administrative record and the 
decision of the Agency. The district court



- 4a

granted that motion and held that the 
plaintiff was not entitled to a trial de 
novo of his claims of discrimination 
reprisal. That decision was affirmed by 
this court, 511 F.2d 902 (1 9 72) and
the petition for certiorari was filed and 
was granted. The judgment entered by the 
district court in the first case and 
approved by this court directed that the 
case be remanded for reconsideration in the 
light of the Supreme Court's decision in 
Chandler v. Roudebush, 425 U.S. 840 (1976), 
which case had held that federal employees 
were entitled to a trial de novo, rather 
than administrative review of their claims 
of discrimination under Title VII.

Following remand to the discrict court 
the case was sent back to the United 
States Civil Service Commission for further 
consideration. That body sent it to the 
Agency for a new decision. The Agency



5a

rejected the complaints and the examiners' 
holding and the second action was then 
filed in the district court and the two 
actions were consolidated.

In March 1979 a five day trial took 
place on the merits of the case. Live 
testimony and documentary evidence was 
presented. At that trial the United States 
did not contest the issue of discrimination 
against Salone based on his race (Mr. 
Salone is black). Indeed, the government's 
proposed findings of fact acknowledged that 
there had been discrimination. Thus, 
the case boils down to how much should be 
awarded.

The plaintiff took the position that 
he ought to have been placed in a higher 
G.S. level. He reasoned that in the 
absence of the earlier discrimination he 
would have advanced in a manner similar to



6a

comparable white employees who had not been 
discriminated against.

The district court issued an opinion 
holding that the plaintiff had been a 
victim of discrimination and that he was 
entitled to be retroactively promoted to a 
G.S.-7 as of 1970 and a G.S.-8, step 1 as 
of 1972 and was also therefore entitled to 
back pay to make up the differences between 
those salaries and the salaries which 
he received as a G.S.-5 employee. Subse­
quently a hearing was held on the issue of 
attorneys fees. The trial court announced 
that any counsel fee recovery would be 
limited to one-third of the back pay 
recovery. Thereupon the court entered a 
judgment granting a total of $15,544.32 in 
back pay and $5,181.44 or one-third in 
counsel fees. It was first contended by 
the plaintiff that he should have been



7a

promoted to higher levels following the 
G.S.-8, step 1 advancement which was made 
by the court in 1972. He claimed that it 
had not been shown that he would not have 
normally advanced absent the discrimina­
tion. The second contention was that the 
attorneys fees were inadequate; that they 
did not consider the amount of time that 
was spent and did not take into acocunt 
that there were two court proceedings on 
appeal to this court and to the United 
States Supreme Court in order to obtain 
relief for the plaintff. It was argued 
that the award of a flat fee following all 
this litigation over a long period of time 
was out of harmony with law applicable to 
the calculation of attorneys' fees in 
civil rights cases. The trial court denied 
the motion to alter or amend and held 
that the plaintff-appellant would not have



8a

advanced above a G.S.-8, step 1 in the time 
since 1972 because he was a troublemaker, 
and that his work had been unsatisfactory. 
As to the attorneys' fees the court held 
that the amount requested was unreasonable 
but did not make any findings of fact to 
support this conclusion. Timely notice of 
appeal was filed and the case eventually 
was placed on the calendar.

The evidence shows, as has previously 
been noted, that the appellant's first 
employment was a Wage Board or blue-collar 
employee in 1947 and that he did not 
file a compolaint of discrimination until 
1 967. After that he was promoted to a 
G.S.-5, supply clerk position. He remained 
there until 1979. After he had received 
what he regarded as an unsatisfactory 
discriminatory performance appraisal, he 
filed the present complaint.



9a

In the most recent hearing before the 
Civil Rights Commission it was concluded by 
the examiner that the evidence was over­
whelming that because of previous discrimi­
nation complaint which he had pursued in 
1967 and 1970 Salone had been branded as a 
troublemaker and had in numerous respects 
been treated differently than whites, and 
in many cases differently from other blacks 
who had not filed discrimination com­
plaints. The Air Force refused to recog­
nize the decision of the Civil Service 
Commission in 1973. At the hearing before 
the district court in 1979 the witnesses 
who had provided affidavits and who had 
testified at the administrative hearing 
gave testimony. This evidence showed not 
only that there had been discrimination but 
also that he was a good and conscientious 
worker. From other sources there was



1 Oa

testimony that he was a troublemaker. The 
supervisor testified at the trial that 
there had not been discrimination. How­
ever, as has been shown, the government did 
not contest that discrimination had indeed 
taken place; but instead it emphasized the 
nature and character of the relief which 
was to be granted. The testimony relating 
to the period after 1972 showed that he had 
received performance appraisals in the high 
90s on a scale of 100. In 1 976 he was 
recommended for an outstanding performance 
rating. Salone also testified that he had 
in excess of three years of college educa­
tion. He stated that he believed that he 
would have advanced to a G.S.-14 or 15 
level if he had been provided equal employ­
ment opportunities early in his career.

Further testimony showed that at 
Tinker Air Force Base it was unnecessary to 
apply for positions as they became avail-



1 1a

able. Profiles were developed by computer 
of all employees who had the eligibility 
for positions, and those eligible were 
contacted to ascertain if they were inter­
ested. Salone had been contacted in a 
period from 1972 for some G.S.-6 positions 
but had declined some on the ground they 
were dead-end and could not lead to further 
advancement. He had not declined others 
and although he had been considered for a 
number of G.S. positions, had never been 
promoted. The trial court in its findings 
has stated that Mr. Salone was in fact a 
troublemaker and did not perform his 
duties satisfactorily. However, these 
findings were at variance with the position 
which the government took admitting that he 
had been labelled as a troublemaker because 
of having filed discrimination complaints 
and that his performance on the job was 
satisfactory. Following the trial court’s



12a

decision Salone was advanced to the posi­
tion of a freight rate specialist, a 
G.S.-8, step 1 level retroactive to 1972. 
This position ranges from a G.S.-7 to 
G.S.-12, depending on the amount of res­
ponsibility. It apparently is a job series 
for which promotions to higher levels may 
be achieved because of an increased level 
of responsibility and performance and that 
this can be accomplished without competi­
tive bidding.

I .

Was the plaintiff entitled to be 
upgraded beyond the G.S.-8 rating that he 
finally received?

There is a good deal of evidence 
concerning this charge, that the plaintiff 
was a troublemaker. At the same time there 
is ample evidence that he was a good 
workman and that he had been trying hard to



13a

better himself both by gaining additional 
education and by working hard. His ratings 
were good and he was considered for other 
positions. However, the trial court 
found:

4. That the plaintiff is known by all 
his co-workers, both supervisory 
and otherwise, as a troublemaker. He 
has earned this label because he has 
gone out of his way to create turmoil 
and controversy; however, he has been 
discriminated against because of his color.

* * * * *

5. Plaintiff has been a victim of 
this discrimination, although a good 
part of the reason for his not being 
promoted was because he is a trouble­maker.
6. That plaintiff's performance in his job is satisfactory.
22. That the plaintiff is properly 
before this Court and has sustained 
his burden of discrimination in his employment herein.

So the evidence is contradictory; on the 
one hand it shows that he had a highly 
satisfactory job performance and at the



14a

same time he was held to have been a 
troublemaker. This latter is rather 
difficult to understand in view of the fact 
that his performance ratings were extremely 
high. Nevertheless the evidence in the 
record is sufficiently strong to sustain 
that his job performance was good or 
satisfactory and that he had been labelled 
as a troublemaker because of his assertion 
of his rights.

The evidence shows that periodic step 
increases for General Schedule employees 
are automatic if the employee's work is of 
an acceptable level of competition as 
determined by the head of the Agency. 5 
U.S.C. § 5335. The purpose of Title VII is 
to put the plaintiff in the place he would 
have been but for the discrimination. 
Under the statute he is entitled to get all 
the benefits that he would have had had 
there not been discrimination. Unquestion-



15a

ably Mr. Salone would have received his 
annual step increases for the G.S.-7 
rating from 1 970 to 1 972 . Moreover he 
would have received the step increases for 
the G.S.-8 after 1972 to the point where he 
was advanced. Unfortunately for Mr. Salone 
there is no evidence in the record that he 
would have advanced to a higher grade after 
1972 if at that time he had had a G.S.-8. 
We have no evidence in the record as to the 
vacancies which were available, the require­
ments of those jobs nor do we have any way 
to determine Mr. Salone's hypothetical 
experience in his retroactive promotion to 
G.S.-8. The effective 118 months or so as 
G.S.-8 is perhaps not unusual. There is 
evidence which, if it had been accepted, 
would have justified award of a higher 
rating but there is also evidence which 
supports the ratings which were given.



1 6 a

All in all we are unable to conclude 
that the trial court's determination as to 
the grade that Mr. Salone should have had 
was clearly erroneous. The trial court, as 
the trier of the fact, must be upheld in 
the absence of evidence showing that the 
determination was clearly erroneous. For 
that reason the decision of the trial court 
as to the grade that Mr. Salone would have 
had, that is the G.S.-7 to 1972 and the 
G.S.-8 thereafter, cannot be set aside. 
However, there is need to modify the 
decision as to the steps in the grade which 
he would have had with the ratings which 
were given him during the periods in 
question, that is 1970 to 1972 and 1972 
forward. Inasmuch as the specific informa­
tion relative to step increases and the 
salary changes for the years in question 
which would have been given is not in the 
record, the case must be remanded for the



17a

purpose of ascertaining what they are and 
for the purpose of awarding these increases 
to the plaintiff-appellant.

II.
Was the award of attorneys' fees 

inadequate for the record and is the 
appellant entitled to a rehearing on this 
issue? We hold that he is.

A 1972 amendment to the Civil Rights 
Act is concerned with attorneys' fees 
and reads as follows:

In any action or proceeding under 
this subchapter the court, in its 
discretion, may allow the prevailing 
party, other than the Commission or 
the United States, a reasonable 
attorney's fee as part of the costs, 
and the Commission and the United 
States shall be liable for costs the 
same a a private person.

42 U.S.C § 2000e-5(k) (1976).
The question is whether the trial court's
measurement of the attorneys' fee in terms
of the one-third of the back pay award to



18a

Mr. Salone in the amount of $5,181.44 was 
erroneous. An effort was made to persuade 
the court to amend the judgment. The court 
said to this:

The court has already awarded a 
reasonable attorneys' fee in this 
case. What plaintiff seeks is en­
tirely unreasonable and not in keeping 
with the value of the services ren­
dered nor justified when compared with 
the result obtained.
There was evidence in the record 

consisting of affidavits from several 
attorneys involved in the case from the 
time of the administrative procedures, the 
appeals, the Supreme Court petition, the 
trial and the second appeal. These affi­
davits appear to have been submitted 
with a motion to amend the judgment. The 
transcript reflects a short hearing to 
determine "[W]hether the court would go on 
an hourly basis or a percentage basis on 
the amount of the award." From the tran­
script it is to be inferred that the only



1 9a

factor considered by the judge was the size 
of the back pay award to be entered into 
the one-third formula.

The plaintiff asserts that the fee 
awarded is small in relationship to the 
complexity of the case and the number of 
hours (245) of lawyer time involved in it. 
Plaintiff argues further that the purpose 
of the Civil Rights Statute is to make the 
plaintiff whole and that the inadequate 
attorneys' fee defeats that purpose. The 
amount prayed for was $20,045.00. We are 
not saying that this is a reasonable fee 
but it does relate to the great amount 
of time spent, the complexity of the 
proceedings, including the several appeals. 
In support of his position the appellant 
cites Johnson v. Georgia Highway Express, 
Inc., 488 F. 2d 714 (5th Cir. 1974) which 
sets forth a number of factors in the ABA 
Code of Professional Responsibility.



20a

The Tenth Circuit has not followed any 
fixed standard in setting attorneys fees in 
Title VII cases. However, in EEOC v. 
Safeway Stores, Inc., 597 F.2d 251, 253 
(10th Cir. 1979), this court did tend to 
follow the Johnson v. Georgia Highway 
Express, supra, standards and the court 
said that where the plaintiff has prevailed 
in a civil suit he is not, "necessarily 
limited to a back pay award" and that 
"[t]here are many factors to be considered, 
and the size of any monetary award is but 
one." Considered in that case were a great 
variety of factors and this court did not 
disprove the method used by the trial 
judge. Similarly in Carreathers v. Alex­
ander, 587 F. 2d 1046, 1052 ( 10th Cir. 1978) 
it was said that ”[t]he trial court is en­
titled to demand ... a number of items, 
such as the nature and extent of services, 
the time required, the results accom-



21a

plished, the value of the matter and the 
professional skill and experience of the 
attorney." The court also said "that the 
hours expended by the attorney is not the 
sole factor." Brito v. Zia Company, 478 
F.2d 1200 (10th Cir. 1973) holds to the
same effect but it approved in 1973 a 
$12,00 per hour award. We conclude that 
the standards as set forth in Johnson v. 
Georgia Express, supra, should generally 
be applied where attorneys' fees are 
authorized. Battle v. Anderson, 614 F.2d 
251 (10th Cir. 1979); E.E.O.C. v. Safeway
Stores, supra. Although Battle adopted 
standards for attorneys' fees by following 
the legislative history of 42 U.S.C.
§ 1988, we believe that it presents a 
parallel situation and its reasoning should 
apply to Title VII attorneys' fees awards 
as well. The case should be remanded to
the district court for a hearing on attor-



22a

neys' fees and should include a reasonable 
fee for the present appeal.

* * * * *

In summary then, our conclusion is 
that judgment should be affirmed in large 
part and that it should be reversed for the 
purpose of computing the step increases 
which would accrue to the plaintiff herein 
considering that he had the G.S.-7 grade for 
1970-1972 and the G.S.-8 grade from 1972 
onward until such time as he was granted a 
new position. The cause must be remanded, 
as we say, in order to receive evidence 
and to draw conclusions as to the added 
amount. There must also be a hearing on 
the matter of attorneys' fees which applies 
the standards as previously discussed.



23a

Accordingly then the judgment of the 
district court is affirmed in large part. 
It is reversed in the particular noted and 
it is remanded to the district court for 
further proceedings consistent with the 
views expressed herein.



24a

Decision of District Court
No. CIV-73-59 1-E 
No. CIV-78-0091-E

IN THE
UNITED STATES DISTRICT COURT FOR THE 

WESTERN DISTRICT OF OKLAHOMA 
October Term, 1980

ANTHONY M. SALONE, JR.,

Plaintiff, 
v.

UNITED STATES OF AMERICA, et al.
Defendants.

FINDINGS OF FACT AND CONCLUSION OF LAW
Before LUTHER B. EUBANKS, United States 
District Judge.



25a

Introduction
This matter comes on before the Court 

on the 7thf 8th, 9th, 14th and 15th days 
of March, 1979, pursuant to plaintiff's 
Complaints, Title 28 U.S.C. §§ 1331 and
1332, and Title 42 U.S.C. § 2000e, et seq. , 
for alleged violation of the statutory and 
constitutional civil rights of the plain­
tiff herein. The plaintiff, Anthony M. 
Salone, Jr., being present in person and 
represented by his attorney, Claude V. 
Sumner, and the defendants appearing 
through Larry D. Patton, United States 
Attorney for the Western District of 
Oklahoma, by John E. Green, First Assistant 
United States Attorney for the Western 
District of Oklahoma. All parties an­
nounced that they were ready for trial and 
the Court, after hearing the testimony, 
statements of counsel for the respective



26a

parties, reading the pleadings herein, 
observing the exhibits filed herein, and 
being fully advised and informed in the 
premises, does now find and conclude as 
follows:

Findings of Fact
1. That the United States, pursuant 

to the subpoena duces tecum served herein 
calling for four copies of the requested 
materials is required to supply one copy of 
said materials to the plaintiff and not 
four copies.

2. That the basis of the plaintiff's 
Complaint involves allegations of under­
rated job performance grading system; low 
performance ratings based on racial 
prejudice and prior complaints of racial 
discrimination of the plaintiff by the 
defendants; and denial of appropriate job 
assignments, training and promotional



27a

opportunities resulting from alleged racial 
discrimination by the defendants.

3. That the plaintiff contends that 
he should have a rating above the GS-5 
rating that he has held for approximately 
12 years.

4. That plainitff is known by all 
his co-workers, both supervisory and 
otherwise, as a troublemaker. He has 
earned this label because he has gone out 
of his way to create turmoil and contro­
versy; however, he has also been dis­
criminated against because of his color.

5. That there existed at Tinker Air 
Force Base at the times complained of by 
plaintiff racial discrimination in the 
performance appraisals, promotions and job 
assignments of blacks in civilian employ­
ment. Plaintiff has been victim of this 
discrimination, although a good part of the



28a

reason for his not being promoted was 
because he is a troublemaker.

6. That the affirmative action 
program at Tinker Air Force Base has 
improved from the status that it was at the 
time that plaintiff lodged his original 
complaint. Today the Court believes that 
racial discrimination has been eliminated 
at this Base.

7. That the plaintiff was never 
fully utilized in his employment status 
based upon his education and abilities.

8. That the plaintiff's learning 
ability score of 54 is considered to be 
average at Tinker Air Force Base.

9. That factors considered in 
promoting an individual at Tinker Air Force 
Base involved education, supervisor's 
appraisals, learning ability score, train­
ing time, awards, suggestions and previous 
supervisory experience, if any, and



29a

experience, with certain positions requir­
ing a test for those particular positions.

10. That a supervisory appraisal 
score in the high 90's is generally present 
in the top five persons placed on profiles 
for particular jobs that would be con­
sidered as a promotion for the individual 
involved.

11 . That there must be a vacancy to 
be filled in order to promote a person to 
a high position.

12. That the plaintiff's performance 
in his job was satisfactory.

13. That the plaintiff exhibited an 
attitude of nervousness and anger when he 
was counseled by his supervisors.

14. That the plaintiff has declined 
some positions that could have been con­
sidered as promotions in other areas of 
work at Tinker Air Force Base.



30a

15. That in the plaintiff's division, 
Materials and Supply Processing at Tinker 
Air Force Base, presently there are one 
person each in GS ratings of 13, 14 and 
15, respectively; four in GS-12; three in 
GS-11; none in GS-10; 12 in GS-9; two in 
GS-8; and six in GS-7 ratings.

16. That the plainitff has over 31 
years of employment at Tinker Air Force 
Base, starting as a WP-5.

17. That the plaintiff has made 
numerous complaints of racial discrimina­
tion to management at Tinker Air Force 
Base. Some of these complaints were 
without foundation in fact but others did 
have some substance.

18. That the plaintiff has been a 
victim of racial discrimination in his 
employment at Tinker Air Force Base during 
the times complained of by the plaintiff.



31a

19. That the plaintiff should be 
promoted to the grade of GS-8 retroactive 
to June 28, 1972.

20. That no punitive damages should 
be awarded to the plaintiff herein.

21. That no money judgment awards 
should be made against the individual 
defendants herein.

22. That the plaintiff is properly 
before this Court and has sustained his 
burden of discrimination in his employment 
herein.

23. That the plaintiff has not shown 
that he is entitled to a GS-15 rating or 
other high supervisory rating.

Conclusions of Law
1. That this matter is before the 

Court pursuant to Title 42 U.S.C. §§ 2000e- 
16(c) and 2000e-5.



32a

2. That the two cases filed herein 
by plaintiff raised the same or identical 
common issues of law and fact and are 
consolidated pursuant to Rule 42(a) 
Fed.R.Civ.P.

3. That the case was tried de novo
before the Court with the Court considering 
the Administrative Record herein along with 
the testimony of witnesses, the pleadings 
and exhibits herein in accordance with 
Chandler v, Roudebush, 425 U.S. 840, 864
(1976), and Salone v. United States, 426 
U.S. 917 (1976).

4. That the Court on the Rule 45(b)
Fed.R.Civ.P. will modify the subpoena 
duces tecum herein served upon certain em­
ployees of Tinker Air Force Base on March 
6, 1979, to the extent that only one copy
of the requested material be produced. Fox
v. House 29 F. Supp. 673, 677 (E.D. Okla.
1939) .



33a

5. That the plaintiff has been a 
victim of racial discrimination in his 
performance appraisals, promotion and 
training for possible higher ratings.

6. That there must be a vacancy to 
be filled in order to promote a person 
from one position to a higher position.

7. That plaintiff has sustained the 
burden of showing racial discrimination 
in his employment and was discriminated at 
Tinker Air Force Base during the times 
mentioned in his complaint.

8. That the plaintiff is not en­
titled to promotion to a GS-15 rating or 
other higher supervisory rating.

9. That the plaintiff should be 
immediately promoted to the grade of 
GS-8, and said rating should be retroactive 
to June 28, 1972, and should be paid 
as if promoted to the grade of GS-7 effec-



34a

tive June 28, 1970, and continuing until
June 28, 1972.

10. That the plaintiff is not en­
titled to monetary damages against the 
individual defendants herein, since at all 
times herein they were acting in their 
official capacities in their employment 
with the United States. Monell v. Depart­
ment of Social Services, 532 F.2d 259, 
264, 265 (2d Cir. 1976); Wood v. Strick­
land , 420 U.S. 308, 322 (1975); Scheuer v. 
Rhodes, 416 U.S 232, 249-250 (1974).

11. That punitive damages are not
available as a remedy for discrimination 
in employment under the Civil Rights Act, 
as the same applies to the United States 
of America. Littleton v. Titro Corpora­
tion of America, 130 F. Supp. 774, 776
(N.D. La. 1955); Missouri Pacific R.R. 
Co. v. Ault, 256 U.S. 554, 563 (1921);
Norfolk-Southern R.R. Co. v. Owens t 256



35a

U.S. 565, 566 (1921); Crockett v. Citizens
& Southern Financial Corp., 349 F. Supp.
1104 (N.D. Ga. 1972); EEOC v. Detroit Edi­
son Co. , 515 F. 2d 301 , 308-310 (6th Cir.
1975); and Russell v. American Tobacco Co., 
528 F. 2d 357, 366 (4th Cir. 1975), cert,
denied, 425 U.S. 935 (1976). See also Spur­
lock v. United Airlines, Inc., 330 F. Supp. 
228, 230 (D.C. Colo. 1971), aff'd, 475 F.2d 
216 (10th Cir. 1972) .

12. That the plaintiff should have 
judgment in accordance with the findings 
and conclusions herein.

13. That counsel for the parties 
forthwith meet and endeavor to reach 
accord as to the amount of plaintiff's 
monetary judgment, including interest.

14. That counsel endeavor to agree 
on a reasonable attorney's fee for plain­
tiff's counsel, but if unable to do so 
this Court will conduct an evidentiary



36a

hearing with respect to attorney's fee on
Thursday, April 26, 1 979 , at 9:30 a. m

DATED this 25 day of April, 1979

United States District Judge



37a

No. CIV-73-59 1-E 
No. CIV-78-0091-E

IN THE
UNITED STATES DISTRICT COURT FOR THE 

WESTERN DISTRICT OF OKLAHOMA 
October Term, 1980

ANTHONY M. SALONE, JR.,

Plaintiff, 
v.

UNITED STATES OF AMERICA, et al.
Defendants.

J U D G M E N T
This matter came on before the Court 

on the 7th, 8th, 9th, 14th and 15th 
days of March, 1979, pursuant to plain­
tiff's Complaints, Title 28 U.S.C §§ 1331
and 1332, and Title 42 U.S.C. § 2000e, et 
seq., for alleged violation of the statu­
tory and constitutional civil rights of the



38a

plaintiff herein. The plaintiff, Anthony 
M. Salone Jr., being present in person and 
represented by his attorney, Claude V. 
Sumner, and the defendants appearing 
through Larry D. Patton, United States 
Attorney for the Western District of 
Oklahoma, by John E. Green, first Assistant 
United States Attorney for the Western 
District of Oklahoma. All parties an­
nounced that they were ready for trial and 
the Court, after hearing the testimony, 
statements of counsel for the respective 
parties, reading the pleadings herein, 
observing the exhibits filed herein, and 
being fully advised and informed in the 
premises, does now find and conclude that 
he should make judgment based on his 
findings of fact and conclusions of law 
filed herein on the 25th day of April, 1979 
and makes the following orders and judgment:



39a

IT IS THEREFORE ORDERED ADJUDGED AND 
DECREED THAT:

1. The Court adopts all the Findings 
of Fact and Conclusions of Law filed by the 
Court on the 25th day of April, 1979.

2. That plaintiff has been denied 
equal employment opportunities by the 
defendants, countrary to law.

3. That the plaintiff should be 
immediately promoted retroactively to the 
grade of GS-8, step 1 with said rating 
retroactive to June 28, 1972, and should be 
paid backpay as if promoted to the grade of 
GS-7, step 1 effective June 28, 1970, and 
continuing until June 28, 1972. The amount 
of the backpay award should be the differ­
ence between what he actually received in 
pay and what he would have received in pay 
had he been promoted in accordance with 
this judgment with total backpay award in 
the amount of $15,544.32.



40a

4. That the Court denies punitive 
damages against the Federal Government and 
denies damages against the individual 
defendants.

5. That the defendant pay plain­
tiff's costs in this action and plaintiff's 
attorneys' fees in the amount of one third 
of the back pay in the total amount of 
$5,181.44.

DATED THIS 31st day of May, 1979.

United States District Judge
ENTERED IN JUDGMENT DOCKET ON 
May. 31, 1979



41a

No. CIV-73-59 1-E 
No. CIV-78-0091-E

IN THE
UNITED STATES DISTRICT COURT FOR THE 

WESTERN DISTRICT OF OKLAHOMA 
October Term, 1980

ANTHONY M. SALONE, JR.,

Plaintiff, 
v.

UNITED STATES OF AMERICA, et al.,
Defendants.

O R D E R

The motion of the plaintiff to alter 
or amend the judgment herein is denied. 
Therein plaintiff argues that he- would have 
been promoted and advanced after attaining 
rating GS-8 on June 28, 1972, or alterna­
tively would at least have received step



42a

increases thereafter except for the dis­
crimination which he has established. The 
court finds that plaintiff would not have 
received any promotions or step increases 
after June 28, 1972, because he was a
trouble maker and spent a great deal of his 
time agitating other employees against 
management and became so preoccupied with 
his efforts to disrupt the procedure at 
Tinker that his job performance was un­
satisfactory, and his denial of advancement 
after said date was because of these 
factors and not because of his race.

The court has already awarded a 
reasonable attorney fee in this case. What 
plaintiff seeks is entirely unreasonable 
and not in keeping with the value of the 
services rendered nor justified when 
compared with the results obtained.



43a

The Clerk of the Court is directed to 
mail a copy hereof to counsel of record. 

DATED this 22 day of June, 1979.

United States District Judge



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