Eisen v. Carlisle & Jacquelin Motion of Respondents for Leave to File Supplemental Brief and Supplemental Brief

    BEFORE THE UNITED STATES 
CIVIL SERVICE COMMISSION 
APPEALS AND REVIEW BOARD

In The Matter Of 
The Discrimination Con-plaint Of

RICARDO R. BROWN 
against

THE V. S. MERCHANT MARINE ACADEMY

ALTEL-LANT 1 S 
PARTIAL APPE

MEMORANDUM IN S 
AT, AS TO RELIEF

UPPOKT OF 
OFFERED

ss. x ^ U T Z m a c a x s

JACK GREENBERG 
BARRY L. GOLDSTEIN 
JAMES C. GRAY, JR.
Attorneys tor Appellant Brown



INDEX

I.
II.

Ill.

Note on Forms of Reference
Page
iii

INTRODUCTION ............... ................ 1

THE EVIDENCE IN THE RECORD .................  3

A. The Examiner in his Report found 
Sufficient Evidence in the Record 
to Support a Determination that 
Racial Discrimination Exists at 
the Academy and that it played
a Significant Part in the Treat­
ment of Appellant's Applications
for a Regular Appointment .............  3

B. Additional Evidence was Presented 
At the Hearing which the Examiner 
did not Include in his Proposed 
Findings of Fact But Should Have 
Because it was Adequately Documented 
and Relevant to the Fashioning of
Appropriate Relief ....................  7

In Enforcing Title VII in cases 
Involving the Federal Government, 
the Commission and the Agencies 
are Empowered to Fashion "Appro­
priate Remedies" to correct an 
Agency's Discriminatory Practices; 
the Relief Offered by the Depart­
ment of Commerce, However, is 
Woefully Inadequate in Light of 
the Full Evidence in this Matter 
and Appellant is Entitled to Full
and Adequate Relief ........................  12
A. A Vacancy Presently Exists in the 

Academy's Department of Physical 
Education and Athletics and Appellant 
Should be Offered Immediate Appoint­
ment to It at an Appropriate Grade 
Level and with Suitable Collateral
Duties ................................  1 3

1



Page
B. In Light of the Academy's Past 

Actions, Appellant Should Be 
Given a Four-Year Contract with 
the Right to Be Considered for
Tenure after January 5, 1977 ..........  18

C- Appellant is Entitled to Receive 
Back Pay For any Income Lost As 
A Result of the Academy's Dis­
criminatory Acts ....... ............... 20

D. Appellant is Entitled To an Award of 
Attorney!s Fees Since Such Awards Are 
An Essential Part Of the Relief To Be
Granted In Successful Title VII 
Matters and Constitute An "Appro­
priate Remedy" For Effectuating
the Policies of § 717 .......... ■......  24

IV. Conclusion .................................  28

APPENDIX: Affidavit of James C. Gray, Jr........  A . 1-3

l i



Note on Forms of Reference

The following notation is used to refer to the 
various items in the record:

"r . a t _____" ~ The Examiner's Report
"T. at " _ Transcript of the Hearing

held on February 20-21,
1974

MInv. R.X.____" - investigator's Report
Exhibit Number ___

"J.I.X. " - Answer to the Interrogatories
in the civil action, Brown 
v. Dent, Exhibit Number ___

Answer to the Administrative 
Interrogatories Exhibit 
Number

iii



BEFORE THE UNITED STATES 
CIVIL SERVICE COMMISSION 
APPEALS AND REVIEW BOARD

In The Matter Of 
The Discrimination Complaint Of 

RICARDO R. BROWN 
Against

THE U.S. MERCHANT MARINE ACADEMY

APPELLANT'S MEMORANDUM IN SUPPORT OF 
PARTIAL APPEAL AS TO RELIEF OFFERED

I. INTRODUCTION
This appeal arises out of the failure of the 

U.S. Merchant Marine Academy to appoint or retain 
Appellant Brown to a faculty position in the Academy's 
Physical Education and Athletics Department. Mr.
Brown who is black served for two years as an instructor 
trainee at the Academy and during his second year made 
three applications for appointment and was turned down 
on each occasion. In January 1973, when his fellowship 
expired, Mr. Brown filed a formal complaint of racial 
discrimination in employment against the Academy.

1/ The procedural and factual backgrounds of this case 
and its companion action in the United States Distnc 
Court for the Eastern District of New York, Brownv.

. 1 <1 a No 73-C-510, up to the February 20 hearing, ar
de?lilel in Complainant's Pre-hearing Memorandum.



A hearing in this matter was held on February 20-21,
1974, before the Honorable Robert J. Shields, and on 
April 15, 1974, the hearing examiner forwarded his 
"Findings and Recommended Decision" to the Department 
of Commerce which adopted them in toto. By a letter 
dated April 22, 1974, the Department of Commerce
notified Appellant that it had made a determination 
that discrimination had occurred and was concurring 
in the examiner's recommendation that he "be appointed 
to the next vacancy in the Physical Education and 
Athletics Department at the Kings Point Merchant Marine 

Academy."
On May 3, 1974, by letter of counsel, Appellant 

filed a Notice of Partial Appeal on the grounds that 
while the decision and findings of fact were adequate, 
the relief offered was inadequate. In particular,
Appellant challenged the Commerce Department's failures 
"(1 ) to recognize that a suitable vacancy presently does 
exist and offer the same to him; (2 ) to grant him back 
pay for income lost . . .; and (3) to grant him reasonable
attorneys' fees . . .." In addition, Appellant requested
that "he be granted a position as an Assistant Professor 
of Physical Education and Athletics at a grade Step 14 
with suitable collateral duties in baseball, gymnastics, 
soccer or track starting as of the beginning of the 
July 1974 term. . . . (with) a four year contract with
the right to be considered for tenure after January 5, 1977.

-2-



Appellant submits that each and every element 
of this requested relief is clearly justified and necess­
itated by the evidence in the record and is in fact re­
quired as part of the equitable relief to which appellant 
is entitled as an "appropriate remedy" pursuant to Title VII

II. THE EVIDENCE IN THE RECORD
A. The Examiner in his Report found

Sufficient Evidence in the Record 
to Support a Determination that 
Racial Discrimination^Exists at 
the Academy and that it played 
a significant Part in the Treat­
ment of Appellant's Applications 
for a Regular Appointment------ _

During the two-day hearing certain testimony 
and documentary evidence were introduced into the record 
upon which the hearing examiner concluded that Mr. Brown 
suffered racial discrimination in his attempts to get 
appointed to the Academy's faculty. For the purposes of 
this appeal, Appellant wishes to emphasize certain portions 
of the examiner's fact findings and analysis upon which 
his conclusion was reached and which the Department of 
Commerce adopted in toto. First, in mahing his final 
determination, the examiner considered Mr. Brown's quali­
fications and the record he had established during the two 
years he served as an instructor-trainee. On this question,

he made the following findings of fact:
The testimony at the hearing and the 
report of investigation sets forth 
one fact quite clearly, Mr. Brown s 
services as a Teaching Fellow at the 
Academy were satisfactory or better.

-3-



In the course of his two years at the 
Academy he definitely demonstrated 
his ability to handle the position as 
an instructor of Physical Education [R. at 4-5]
We found in the course of the hearing 
and as the result of information con­
tained in the investigative report 
that there were numerous occasions 
upon which the Academy bent the regu­
lations or obtained waivers for certain 
individuals in order to place them on the 
faculty in positions for which they did 
not qualify under the terms of the Academy's 
own standards. [R. at 5]
Mr. Brown had demonstrated his ability.
The Academy places great emphasis on 
the fact that they appoint people who 
are "qualified for the position". Mr.
Brown has demonstrated his competency 
and his qualifications. The fact that 
he lacks coaching experience should not 
bar him from a position for which he 
appears to be well qualified. [R. at 9]
While it is not difficult to understand 
the need to utilize the positions in the 
Physical Education Department to obtain 
coaches on the intercollegiate level, 
there is also a clear-cut mandate to the 
administrators of the Kings Point Academy 
to place Blacks on the faculty. [R. at 9]

Second, the examiner took into consideration the Academy's 
past record in implementing its affirmative action program 
and in following the Executive Mandates on equal employ­
ment opportunity. This examination led to the following 
statements and findings of fact:

The United States Merchant Marine Academy 
at Kings Point, New York had an affirma­
tive action program whose sole purpose was 
to place Blacks and other minorities on the 
faculty, since 1968. As of the date of the 
hearing there are no Black members on the 
ilk11,9s Point faculty. [R. at 6 ] (emphasis added)

-4-



It is our opinion that the lack of 
sensitivity towards the problems of 
integration demonstrated by the per­
sonnel at the Academy is clear evidence 
of institutional discrimination. [R. at 8]
While these actions by the Academy are 
commendable, 2/ when they fail to place 
a Black on the faculty, it becomes ap­
parent that there is a duty upon the 
Academy to do more. It is my opinion 
that the Academy was under an obliga­
tion to send out recruiters to the 
Black colleges to actively solicit 
faculty members for the Kings Point 
Merchant Marine Academy. The affirma­
tive action program has been in effect 
for over five years. It had failed.
There is certainly an obligation on 
the agency in light of the failure to 
do more. 3/ [R. at 8-9] (emphasis added)

Finally, when arriving at his finding tnat the Academy 
lacked sensitivity towards the problems of integration, 
the examiner reviewed the Academy 1s treatment of its 
only black faculty member. This treatment led him to

2/ In defense, the Academy sought to show that letters 
had been sent to predominantly black colleges around i_he 
United States with regard to the second position sought 
by Mr. Brown,although the record is unclear as to whether 
the number of black colleges was 29 or 14. Appellant wishes 
to note, however, that all of these colleges were more than 
200 miles away from New York and that^Mr. O'Grady testified 
that the Academy would not pay a candidate's travel and lodg­
ing expenses for an employment interview. [T. at 349]
3/ Since the hearing, additional information has come to 
Appellant's attention regarding other equal employment/affirma 
tive action difficulties at the Academy. Wnile these unfortu 
natelv are not in the record, Appellant believes that if the 
Commission has done an equal employment opportunity compliance 
investigation of the Academy the information contained therein 
will support the position that the Academy's record in this 
area is poor at best and should serve as additional back­
ground on this issue.

-5-



A Mr. Kenneth Bantum, a Black was a 
member of the faculty for three years. 
He left the faculty when, despite the 
unanimous recommendation of the Ad Hoc 
Committee, Admiral Engel, the Academy 
Superintendent, refused to grant Mr. 
Bantum tenure.

make the following findings of fact:

Admiral Engel indicated that it was 
his own-personal decision, because 
of a bad experience he had had in the 
cast, to grant tenure only after four 
years on the faculty. This decision 
by Admiral Engel was not published 
and only came to light after Mr ,• Bantum 
resigned from the faculty.
It is apparent that the administrators 
at Kings Point were rather indifferent 
to Mr. Bantum's position. [R. at 7]

Based upon these findings which were adequately 
documented in the record, the Appeals Examiner made his

recommendation that:
. . .  a finding of discrimination be 
made in this case. While there is 
no direct evidence of discrimination, 
there certainly is circumstantial evi­
dence which indicates that the Academy 
is indifferent to the plight of Blacks, 
is not interested in integrating their 
faculty and has failed to take the 
necessary steps required by the various 
Executive Orders to integrate the 
faculty. We feel that discrimination 
is not necessarily the results of acts 
of commission, but can also be a result of 
acts of omission. We feel that the dis­
crimination in this case is clearly demon­
strated by the failure of the Academy to 
place Blacks on the faculty. [R. at 10]

6-



The Department of Commerce received this recom­
mendation, accepted it as valid and justified by the evi­
dence, and adopted it. Having done so, the Department 
and the Academy were under an obligation to make all 
reasonable efforts to offer Mr. Brown full and fair equit­
able relief. Unfortunately, they have not done so.

B. Additional Evidence was Presented 
At the Hearing which the Examiner 
did not Include in his Proposed 
Findings of Fact But Should Have 
Because it was Adequately Documented 
and Relevant to the Fashioning of 
Appropriate Relief________________ __

Daring the hearing, Appellant introduced certain 
other evidence and testimony which he feels were adequately 
documented and should have been reflected in the findings 
of fact and decision but were not. This evidence is important 
for determining the full extent of the relief to be fashioned.

First, Appellant introduced evidence showing that in 
addition to applying for the two positions that were filled 
respectively by Messrs. Buckley and Sussi he had also sought 
a temporary appointment to run from the January 1973 termina­
tion of his fellowship contract. This was after he was denied 
the second position. While such appointments may be unusual. 
Appellant submits that the Academy's cursory handling of his 
request is another example of the insensitive, discriminatory 
manner in which the Academy dealt with the problems of integra­
tion and affirmative action in general, and Mr. Brown in parti­
cular. Personnel Officer John O'Grady testified that in May 
of 1973, six months after Mr. Brown's request, he learned from

-7-



the Maritime Administration's personnel officer that surplus 
instructor-trainee funds could be utilized to employ temporarily 
a minority instructor. [T. at 373-379]. The record shows 
that at the time of Mr. Brown's request there were funds available 
- funds especially designated for employing minority persons.
One is forced to conclude that if the people at the Academy had 
been seriously interested in effectuating their affirmative action 
program, particularly in light of Mr. Brown’s record and his 
previous disappointment at their own hands, they would have made 
some inquiry as to whether or not any funds were available for 
retaining Mr. Brown until the end of the school year. Instead, 
his request was perfunctorily dismissed; there is nothing in the
record to show that any inquiry was ever made.

Second, the Record shows that there presently is a vacancy in 
the Physical Education Department. There is no question that 
such a vacancy exists; there is only a question as to whether or 
not the Academy intends to fill it. In December of 1973, a 
Mr. Zielinski retired. [Zuaro testimony, T. at 210-211],
Mr. O'Grady admitted that such a vacancy existed but testified 
that he did "not believe we are going to fill that position.^
It has been our feeling that the department is overstaffed.
[O'Grady testimony, T. at 362-363].

4/ in the next paragraph Mr. O'Grady mentions that Mr. Zuaro 
was RIFFED the year before because of over-staffing. Appella 
submits that this RIF was simply a vehicle for eliminating 
Mr Zuaro with whom the administration was at odds. Mr. Zuaro s 
testimony and Admiral Engel's testimony have undercurrents of this 
hostility. After Mr. Zuaro won reinstatement because the RIF 
violated his tenure, no one else in the department with less 
seniority was removed to correct this overstaffing.

8



In reply to this contention that the department is over­
staffed Appellant wishes to call to the Board's attention 
Commander Zuaro's testimony on the "Rubino Report" which was 
introduced as Complainant's Exhibit 1. Commander Zuaro 
testified that that report showed the physical education 
department to be understaffed and in need of qualified 
people, individuals with degrees in physical education 
[T. at 188-190]. Appellant also calls the Board's attention 
to Admiral Engel's testimony in which he expressed his own 
dissatisfaction with the quality of the PE program being 
offered at the Academy and stated that he wanted it to 
have a viable PE program capable of teaching a young man 
how to take care of his body. [T. at 273, 276-278]. When 
questioned as to whether having qualified, trained physical 
educators would be an important aspect of achieving this, 
he replied "Absolutely." [T. at 278]. Once again, Appellant 
must point to the Examiner's and the Department's finding 
that ". . .Mr. Brown's services as a Teaching Fellow at
the Academy were satisfactory or better . . .Mr. Brown 
had demonstrated his ability . . . (he) has demonstrated 
his competency and his qualifications."

Finally, there is the whole issue of coaching 
and collateral duties. It has been the Academy's position 
that the only reason they never bothered to consider Mr.
Brown seriously for any position in the Department was 
because he lacked coaching ability. The problem with this 
contention is that it is not ability that Mr. Brown lacks

-9-



experience. Appellant submits that the examiner 
should have found as a matter of fact that the Mr.
Brown lacked coaching experience because no one at the 
Academy had ever bothered to see that he was getting any.
If coaching skills are a prerequisite for permanent 
employment, one is forced to conclude that the Academy 
was negligent in its training program and to assume that 
this negligence, although perhaps an act of oversight and 
omission, is just another example of the institutional
discriminatory behavior found by the examiner.

The evidence shows that Mr. Brownhas the ability
and academic preparation to coach in a number of sports 
and activities. IT. at 17-24 and 295]. Because of his 
experience competing in baseball and soccer when growing 
up in panama he is particularly qualified to coach in 
those two sports. [T at 22], The fact that the Academy 
seems to be ignorant of this experience reinforces the 

' picture of discriminatory negligence. Mr. Brown testified 
that he had on his own approached the baseball and soccer 
coaches and asked if he could assist them but was told no.

[T. at 21-22 ] .
in considering the issue of collateral duties, 

it should be kept in mind that the Academy gets its coaches 
from three sources: PEA department faculty, other faculty
and outside coaches and that there is great confusion at 
the Academy as to what exactly collateral duties are. For 
example, in answering complainant's Administrative Inter­
rogatories, the majority of the instructors and professors

-10-



in the Physical Education and Athletics Department are 
described as having collateral duties in Physical Educa­
tion, [A.X. 10 at 1-2], while Mr. O'Grady in his testimony 
stated that the Academy cannot put a man on as a coach 
because his primary duty would have to be Physical Educa­
tion. [T. at 370]. The record makes it perfectly clear 
that there is no formal table of organization for the 
department linking a particular position to particular 
collateral duties.

This is important when considering the Sussi 
position because it is apparent that the position could 
have been defined in such a way as to allow Mr. Brown to 
be actively considered. [See Poppe Affidavit, Attachment 11, 
Memorandum of November 16, 1972]. Alternative arrangements 
could easily have been made for filling the football coaching 
vacancy with an outside coach, especially since the.hiring 
occurred after the football season.

As to the Academy's present needs, the record 
shows that the Academy needs someone capable of replacing 
Mr. Zielinski in gymnastics and perhaps Professor Madden in 
baseball. [T. at 363, 275-76, and 371]. Mr. Brown is 
capable of doing both of these things and for the Academy 
to deny this is to simply show once more their indifference, 
intolerance, ignorance and intransigence.

-11-



Ill IN ENFORCING TITLE VII IN CASES
INVOLVING THE FEDERAL GOVERNMENT,
THE COMMISSION AND THE AGENCIES 
ARE EMPOWERED TO FASHION "APPRO­
PRIATE REMEDIES" TO CORRECT AN 
AGENCY'S DISCRIMINATORY PRACTICES;
THE RELIEF OFFERED BY THE DEPART­
MENT OF COMMERCE, HOWEVER, IS 
WOEFULLY INADEQUATE IN LIGHT OF 
THE FULL EVIDENCE IN THIS MATTER 
AND APPELLANT IS ENTITLED TO FULL 
AND ADEQUATE RELIEF______________

When Congress amended Title VII in 1972 to 
include the Federal Government, it mandated that " [A] 11 
personnel actions affecting employees or applicants for 
employment . . . shall be made free from any. discrimina­
tion based on race, color, religion, sex or national 
origin," 42 U.S.C. 2000e § 16(a). To achieve this end, 
the congress authorized the Civil Service Commission "to 
enforce the provisions of subsection (a) through appropriate 
remedies, including reinstatement or hiring of employees 
with or without back pay, as will effectuate the policies 
of this section . . ." 42 U.S.C. 2000e § 16(b). (Emphasis

added).
Appellant submits that given the facts in this 

case —  those contained in the examiner's report 
and those referred to above in Section IIB - the remedy 
offered by the Department is woefully inadequate. This 
appeal seeks to obtain remedies which are truly appropriate 
and reasonable in light of the injuries thich Appellant has 
sustained and the facts of this case. Appellant has re­
quested those elements of additional relief which he feels 
are necessary to remedy the Academy's acts and to effectuate

-12-



the policies of Title VII, Section 717 and which are requiredVby equity and the law.
A. A Vacancy Presently Exists in the 

Academy's Department of Physical 
Education and Athletics and Appellant 
Should be Offered Immediate Appoint­
ment to It at an Appropriate Grade 
Level and with Suitable Collateral 
Duties_______________________________

Both the hearing examiner and the Department of 
Commerce determined on the basis of the evidence that Appellant 
had in fact been discriminated against and that he should be 
appointed to the faculty. Having made this determination, equity 
requires that the Academy and Department of Commerce make all pos­
sible efforts to remedy its past discrimination in order to mini­
mize Mr. Brown's damages and injury.

Because the record clearly show that right now a vacancy 
exists in the Academy's Physical Education and Athletics Department 
it is not even necessary in this appeal to consider whether Mr. 
Brown should replace either of the two persons who were appointed. 
The question of whether or not the Academy plans to fill this posi­
tion should be irrelevant. If the Academy which has been found 
to harbor institutional discrimination is allowed to determine when 
it feels it is convenient for justice and equity to be done, Mr. 
Brown may find himself waiting for five to ten years before the 
Academy officials deem to fill any of the vacancies which may arise 
The Academy's claim that the department is overstaffed originally arose

5/ Were it not for the fact that the Academy is already under a 
Congressional and an Executive Mandate to take affirmative steps 
to seeing that the Academy's faculty is integrated, one element of 
the requested relief would be the institution of an affirmative 
action program. [Title VII and Executive Order 11478]. Since the 
Commission is already charged with enforcing said Act it would 
not appear necessary to specifically seek such class relief, es­
pecially in light of the examiner's finding of institutional 
racism.

13-



when the Academy was under a Reduction-in-Force Order 
and tried to use this "overstaffing" to remove a tenured
professor with whom the administration had difficulties.
The Academy, however, after losing at a Civil Service 
Commission hearing on this attempted RIF, made no further 
attempt to adjust the alleged overstaffing by removing 
any of the untenured staff members. As Mr. O'Grady himself 
testified, the Academy is no longer under a reduction in 
force or departmental personnel ceiling. [T. at 362].

Both Admiral Engel and Commander Zuaro testified 
that the Academy needed to improve its program, and that 
a major element in achieving this would be accomplished 
through employing qualified physical educators which 
Mr. Brown is. Yet the Academy persists in saying that 
they just do not thinlc they want to fill this position.

As the Examiner found, the evidence is clear that 
when the Academy wants someone they are willing to go to 
extraordinary lengths to hire the person. This does not 
seem to be true, however, when it comes to employing blacks. 
In filling the first position for which Mr. Brown applied, 
the Academy obtained a waiver for the requirement of an 
Ad Hoc Committee to recruit candidates and then a waiver 
of the Academy's qualification standards in order to hire 
a man with no college level teaching experience whose 
college degree was in history and whose master's was in 
secondary school administration as an Associate Professor 
of Physical Education and Athletics at a salary of $18,290 
per annum. (The qualification standards require 5 years

-14-



college teaching minimum and a Doctorate except in rare 
instances. [J.I.X. 10]). When faced with an opportunity 
and a quasi-judicial administrative order to offer Mr.
Brown a position —  a man with two years of experience 
at the Academy, a bachelor's and a master's degree in 
physical and health education, who was well liked and 
respected by the cadets —  the Academy simply states that 
they don't plan on .filling the position.

Armed with the fact that a quasi-judicial 
order for appointment has been entered and that the Academy 
supposedly has an affirmative action program in operation, 
the Academy should have little difficulty in dealing with 
any but the most compelling administrative complications 
(such as personnel ceilings) in pushing through Mr. Brown's 
appointment to the Zielinski vacancy. A feeling that the 
department is overstaffed is clearly not sufficiently com­
pelling, and the Academy should be required to offer him 
immediate appointment to that position as an Assistant 
Professor of Physical Education.

Appellant meets all the requirements for appoint­
ment to an Assistant Professorship. Mr. Brown has his 
master's degree received in August 1972, several months 
before the man for whom they got waivers received his.
His degree is in the applicable area of study as required 
by § 1.4 of the Academy's Qualification Standards. Although 
Mr. O'Grady thinks very little of the teaching experience 
involved in the Instructor-trainee program he runs, Appel­
lant submits that he has met the college level teaching

-15-



requirement through the program in both an absolute sense 
and relative to the second man appointed whose pre-appoint­
ment teaching experience was similar to Appellant s.

Appellant believes that his appointment should 
also be at a suitable grade level. A study of the qualifi­
cations of the two persons appointed would suggest step 14.
The first appointee, the one described above, was brought aboard 
at a step 21 as an Associate Professor, at a salary of $18,290.
He possesses a master's degree received after Mr. Brown re­
ceived his, and lacked at the time of appointment any college 
level teaching experience (although a number of years of high 
school teaching experience in a variety of subjects). The 
second appointee has a master's received in 1970 and had 
two and a half years teaching fellow experience and a year of high 
school teaching after that. Although he was brought on as 
Assistant Professor apparently at a step 7, he has no doubt since
November 1972 advanced several grades.

In light of the finding of discrimination and the 
Academy's past practice towards the above-mentioned individuals, 
an appointment at step 14 is reasonable. At the minimum, equity 
and equal protection require that Mr. Brown be treated similarly, 
and hold the same rank and salary as the second appointee.

Despite the Academy's seeming confusion on the exact 
nature and role of collateral duties, it appears from the record

-16-



that one could say that they are shaped to fit the 
Academy's needs and the person's abilities. Mr. Brown 
is a qualified and competent physical educator, and as 
such is capable of instructing and coaching a number of 
different sports. The record shows that the Academy lost 
its gymnastics coach when Mr. Zielinsky retired [T. at 363] 
and that Mr. Brown instructed students in gymnastics, 
tumbling, swimming. [T. at 19]. It also shows that 
Professor Madden of the Engineering Department who volun­
tarily coached the baseball team has been considering 
stopping doing so or changing to another sport [T. at 
275-276 and 371] and that Mr. Brown played baseball and 
soccer in his native Panama [T. at 19-20]. Appellant 
suggests that the Academy might find, if they looked, 
that they could in fact use Mr. Brown to coach gymnastics 
and also as head or assistant baseball coach depending 
on what Professor Madden decides to do.

The Academy cannot complain that it has no 
evidence of Mr. Brown's coaching ability, for it must be 
remembered that during his two years at the Academy they 
sought none. No one at the Academy ever bothered to ask 
Mr. Brown what sports he thought he might coach or to 
suggest he get some coaching experience or to tell the 
coaches whom he did approach that they should allow him 
to assist them. Given an opportunity and cooperation,
Mr. Brown will show the Academy that he is as competent 
and capable a coach as he is a teacher.

-17-



B. In Light of the Academy's Past 
Actions Appellant Should Be 
Given a Four-Year Contract with 
the Right to Be Considered for 
Tenure after January 5, 1977

Appellant seeks as part of the "appropriate 
remedies" to which he is entitled a four-year contract 
with the right to be considered for tenure after January 5, 
1977. This element of relief is requested in order to . 
protect Appellant from the uncertainties of Academy life 
revealed in the record while at the same time assuring 
him of equitable treatment.

At the hearing, Appellant put on considerable 
testimony and evidence about the Academy's treatment 
of its only black faculty member, Mr. Kenneth Bantum. The 
examiner found this evidence persuasive on the question 
of Academy insensitivity to racial matters if not indica­
tive of racial discrimination per se.

The record shows that Mr. Bantum when he came to 
the Academy had a three year contract. After serving his 
three years, his name came up before the tenure committee 
and he was voted on by the committee. The Academy's regu­
lations state that an instructor or professor can be con­
sidered for tenure after three years and must leave if he 
has not gotten it by the end of five years. The tenure 
committee apparently believed these rules to still be 
operative for they voted five for and one abstaining or 
against Professor Bantum for tenure. But the Admiral 
turned Mr. Bantum down on tenure because he had sub 
silentio decided that three years was too short a time;

-18-



Mr. Bantum resigned.
Regardless of whether or not this policy was created 

before or after Professor Bantum's name came up, it becomes 
apparent that a three year contract is inadequate.

The January 5, 1977 date is exactly four years after 
Mr. Brown's teaching fellowship expired. ' This is the date 
he would have been eligible for tenure under the newly announced 
four-year rule had he been placed on the regular faculty in 
1973. Allowing him to be considered for tenure as of that 
date in no way prejudices the Academy because granting of tenure 
will be based upon his performance while doing so serves to place 
him in the position which he would have been in but for the 
Academy's discriminatory acts. The only way to insure the 
appellant full equitable treatment is to count the time that 
has elapsed since his non-retention as going towards tenure.

6/

6/ Although Admiral Engel claimed to have turned 
two whites down the year before for this reason, 
the evidence is contrary. Both men had received 
unfavorable votes from the tenure committee.
[J.I.X.14, Messrs Schwimmer and Cassar - compare 1971-72 
decisions with 1972-73].

19



c. Appellant is Entitled to Receive 
Back Pay For any Income Lost As 
A Result of the Academy's Dis- 
criminatory Acts ___________ ..

"Back Pay is clearly an appropriate remedy for 
Title VII violations". Head v. Timken Roller Bearing 
£o., 486 F .2d 870 at 876 (4th Cir. 1973). From its 
enactment Title VII has contained provisions for the 
granting of back pay to employees and applicants for 
employment who were found to have suffered from discri­
minatory practices by private employers. When Congress 
amended the Act in 1972 to include the Federal Government, 
it specifically authorized the civil Service Commission 
to include the granting of back pay as an appropriate 
remedy. 42 U.S.C. § 2000e(16)(b). Congress also 
incorporated the back pay provisions governing civil 
actions for suits brought pursuant to the 1972 amend­
ments against the Federal Government. 42 U.S.C. § 2000e 

(16) (d) .
The Commission's own regulations outline back 

pay as an essential part of the remedial actions to be 
given when discrimination has occurred. 5 CFR Subpart B 
§ 713.271. These regulations state: "When an agency, or
the commission, finds that an applicant for employment 
has been discriminated against and except for that dis­
crimination would have been hired, the agency shall of^er 
the applicant employment of the type and grade denied him.

If the offer is accepted . . . Back Pay, computed in
the same manner prescribed by § 550.804 of this chapter,

-20-



shall be awarded . . If the offer is declined
the agency shall award the individual a sum equal to the 
back pay he would have received . . . from the date he
would have been appointed until the date the offer 
was made . . . . 11 5 CFR. Subpart B §713.271 (a) (1) .

In the instant matter, the examiner and the
Department of Commerce found:

There is no evidence to indicate that any 
one individual or for that matter any 
individual on the faculty or the adminis­
tration of Kings Point who (sic) is guilty 
of racial discrimination. There is evidence 
however, that the Academy and its adminis­
trators employed various vehicles of discri­
mination and further, that they failed to 
take action which was required of them under 
Presidential mandate. For these reasons we 
must conclude that there was in fact dis­
crimination in connection with the failure 
to appoint Ricardo R. Brown to a position 
on the Kings Point faculty. [R. at 9] (emphasis 
added)

Such a finding brings this matter within the purview of 
§713.271(a)(1). The evidence shows Mr. Brown to be as 
qualified, if not more qualified, to fill the primary 
duty of Instructor/Professor of Physical Education as 
either of the two individuals appointed.

As to the secondary, so-called collateral duties, 
the record shows that they were mutable. For example, 
the second person appointed was selected after the football 
season and for that matter the Academy could have hired an 
outside sixth football coach; the head track coach position 
according to the Admiral was something he thought of to 
entice Mr. Bantum to stay on without tenure because there

-21-



was already a head track coach who was not planning on 
giving up his duties. To paraphrase the Examiner's 
report, these appointments if taken by themselves, 
might be viewed as having been made without discrimination 
but when considered in light of the Academy's absolute 
failure to see that equal employment opportunity and 
affirmative action exist at the Academy, one has to 
conclude that Mr. Brown was discriminated against when 
the Academy failed to appoint him to its faculty [cf.R at 6).

This conclusion is reinforced by the fact that 
when Mr. Brown requested a temporary appointment after 
his second application for regular employment at the 
Academy was rejected, the Academy made no apparent efforts 
to accommodate him even though mid-year is a difficult 
period for job hunting in the college professor field.
Five months later, the Academy learned through no apparent 
fault of their own that they could have utilized their 
excess instructor-trainee funds to temporarily employ a 
minority group professor - funds which were not under a 
personnel ceiling. If Mr. Brown's third application had 
been treated with anything approaching the zeal exhibited 
by the Academy’s officials in getting waivers for the first 
individual employed, one might be able to attribute some 
element of good faith to the Academy. But this is not so.

Appellant from the filing of his formal state­
ment to the investigator has sought back pay and is entitled 
to it. Such back pay is the difference between the salary

-22-



he earned from teaching in the New York Public Schools
after termination on January 5, 1973 and that he would
have earned if he had been retained at the Academy as
an Assistant Professor at an appropriate grade level.

The Courts have consistently held that back
pay is an essential part of the relief to be granted in
cases of discrimination brought pursuant to Title VII.
"The back pay award is not punitive in nature but
equitable-intended to restore the recipients to their
rightful economic status absent the effects of the
unlawful discrimination." Robinson v. Lorillard Corp.,
444 F .2d 791 at 802 (4th Cir. 1969), cert. den. 404 U.S.

1/10006 (1971). Recently the Fifth Circuit has made it 
also clear that even if an employer in "good faith" intended 
a policy of no discrimination but in fact the practices dis­
criminated, then the employer violated Title VII and

8/
is responsible for back pay. Even in the absence of

7/ See also Head v. Timken Roller Bearing Co., supra;
Bowe v. Colgate-Palmolive Co., 416 F.2d 711 (7th Cir. 1969); 
Johnson v. Georgia Highway Express, 417 F.2d 1122, 1125 (5th 
Cir. 1969); v. Hayes International Corp., 456 F.2d
112, 121 (1972) ; U.S. v". Georgia Power Co., 474 F.2d 906 
at 921 (5th Cir. 1973); Moody v. Albermarle Paper Co.,
474 F .2d 134, 142 (4th Cir. 1973).
8/ Johnson v. Goodyear Tire & Rubber Co., 491 F.2d 1364 
at 1876 (5th Cir. 1974); Pettway v. America Cast Iron Pipe 
Co., 494 F .2d 211 at 251-263 (5th Cir. 1974); Baxter v. 
Savannah Sugar Refining Corp., 492 F.2d 437 at 442-443 
(5th Cir. 1974).

-23-



statutory authority back pay is appropriate relief.
In cases involving employment discrimination brought 
pursuant to the 1866 and 1871 Civil Right Acts,
42 U.S.C. § 1981 et seq., the courts have held back 
pay to be an essential part of the equitable relief

9/to be granted.

D . Appellant is Entitled To an Award of
Attorney's Fees Since Such Awards Are 
An Essential Part Of The Relief To Be 
Granted In Successful Title VII Matters 
and Constitute An "Appropriate Remedy"
For Effectuating The Policies Of $ 717

The awarding of attorney's fees to successful 
plaintiffs is an essential part of the relief to be granted 
in Title VII matters. The Congress in enacting Title VII 
provided that "In an action or proceeding under this Title, 
the court, in its discretion, may allow the prevailing party 
. . . a reasonable attorney's fee as part of the costs 
. . .." 42 U.S.C. § 2000e (5) (k) . In amending the Act to 
include the Federal Government, Congress incorporated the 
attorney's fees provision of section 706(k), inter alia, 
to govern civil actions brought pursuant to the amendments.

9/ Harkless v. Sweeney, 427 F.2d 319, 324 (5th Cir. 1970); 
Lee v. Macon County Bd. of Educ., 453 F.2d 1104, 1114-1115 
(5th Cxr~. 1971); McLaurin v . Columbia Municipal Sep. School 
District, 478 F.2d 348, 353, 354 (5th Cir. 1973); Wall v. 
Stanley County Bd. of Educ., 378 F.2d 275, 276 (4th Cir. 
1967) ; North Carolina Teachers ' Association v. Asheborn 
City Bd, of Educ., 393 F.2d 736, 745-746 (4th Cir. 1968); 
McFerren v. County Bd. of Educ. of Fayette County. Tenn.,
455 F .2d 199, 202-204 (6th Cir. 1972); Smith v. Bd. of Educ. 
of Morrilton, 365 F.2d 770, 784 (8th Cir. 1966); Jackson v. 
Wheatley Sch. Dist., 464 F.2d 411 (8th Cir. 1972) .

-24-



42 U.S.C. § 2000e (16) (d) .
Attorney's fees are of essential importance

to the enforcement of Title VII. The Courts have
consistently granted attorney's fees to prevailing
plaintiffs. The Fourth Circuit in Robinson v. Lorillard,
supra, 804, has stated:

Our decision in Lea v. Cone Mills,
438 F .2d 86 (4th Cir. 1971), . . .
establishes that the denial of 
counsel fees was an abuse of discre­
tion . In Lea v . Cone Mills we noted 
that under Title VII as under Title II 
. . . attorney's fees are to be imposed 
not only to penalize the defendants for 
pursuing frivolous arguments, but to 
encourage individuals to vindicate the 
strongly expressed congressional policy 
against racial discrimination.

444 F .2d 791 at 804.
In January 1974, the Fifth Circuit in Johnson v. 

Georgia Highway Express, l'nc., 488 F.2d 714 at 716, stated: 
"This Court, as part of its obligation 'to make sure that 
Title VII works' has liberally applied the attorney's fees 
provision of Title VII, recognizing the important of private 
enforcement of civil rights legislation. See Clark v. 
American Marine Corp. [320 F.Supp. 709, aff'd 437 F.2d 959 
(5th Cir. 1971)]; Rowe v. G.M. Corp., 457 F.2d 348 (5th Cir. 
1972); Long v. Georgia Kraft Co., 455 F.2d 331 (5th Cir. 
1972) . .

Both the Fourth and Fifth Circuits in their decisions 
looked to the Supreme Court's decision in Newman v. Piggie 
Park Enterprises, Inc., 390 U.S. 400, 88 S.Ct. 964, 19 L.Ed. 2d 
1263 (1968) which involved an action brought pursuant to

-25-



Title II of the 1964 Civil Rights Act. The Supreme 
Court therein observed that "if (the plaintiff) 
obtains an injunction, he does so not for himself 
alone but also as a 'private attorney general,' vin­
dicating a policy that Congress considered of the highest 
priority." 390 U.S. 401-402, 88 S.Ct. 966, 19 L.Ed. 2d 1263 

In the instant matter, Appellant has been placed 
m  the position of a private attorney general seeking to 
vindicate the policies of both the Congressional and Exe­
cutive mandates of equal employment opportunity in Federal 
Government employment. To this end, he has given the federal 
agencies involved every opportunity to correct their dis­
criminatory acts - to "clean their own house" as it were.

In some matters brought pursuant to § 717, it may 
be possible to resolve the alleged discriminatory acts in­
formally through the^internal procedures of the Act without 
resort to counsel. In the instant case, counsel was needed 
to consult with Appellant, make discovery, to prepare and 
present the documentary evidence and testimony given at the 
hearing, and now to prepare this appeal. The Academy has 
had several opportunities to conciliate this matter, but 
has failed to do so. Were it not for Appellant's prosecution

r~{ , SlItlllarly- since the E.E.O.C. attempts conciliations 
but does not hold formal proceedings, the presence of counsel 
is not normally required and attorney's fees are not granted.

-26-



of this matter, it is very questionable whether the 
Academy would ever have become aware in the reasonably 
forseeable future that the federal requirements regarding 
equal opportunity in employment and effective affirmative 
action programs are to be taken seriously.

Appellant is entitled to an award of attorney's 
fees by a Federal district court as part of the appropriate 
relief to which he is entitled. The Commission has the 
authority, pursuant to § 717(b), "to enforce the provisions 
of subsection (a) through appropriate remedies . . .  as will 
effectuate the policies of this section." An award of attorney's 
fees is an appropriate remedy in the instant matter.

m  a recent decision by the District Court for the 
District of Columbia, Smith v. Kleindienst. (D.D.C. civ. Act.
NO. 1603-72 Order of June 26, 1974; Motion to Reconsider 
denied in pertinent part July 23, 1974), the Court granted 
an award of over $18,000 in Attorney's fees in a Title VII 
action against the Federal Government, of which $2000 were
fees for time spent in handling the administrative proceed- 
ings at a rate of $75.00 per hour.

Appellant's counsel in prosecuting this matter 
have spent well over 200 hours at the present time. (see 
attached affidavit.) it is in the interest of judicial 
economy that this matter be satisfactorily resolved without 
further resort to federal courts. It is also in the interest 
of effectuating the policy of section 717 that the federal 
government be encouraged to resolve matters of employment 
discrimination within its own walls that this matter be

-27-



satisfactorily concluded.
If attorney's fees are denied by the Commission 

when warranted as in the instant matter, complainants 
under the Act will be discouraged, rather than encouraged, 
from pursuing relief through the administrative mechanisms 
provided for by the Act. To deny reasonable attorney's 
fees would penalize successful parties for utilizing the 
administrative procedures in serving the role of a private 
attorney general and that would surely be wrong.

IV. CONCLUSION
For the reasons enumerated above Appellant is 

entitled to receive full equitable relief for the Academy's 
wrongful acts and not just a Pyrrhic offer of the next 
vacancy the Academy wishes to fill. The elements of such 
jpgUgf are the normal and reasonable consequences of a sue 
cessful employment discrimination action: appointment to the 
next possible vacancy with back pay for any income lost and 
employment conditions and benefits designed to make up for 
the effects of the discriminatory actions, and an award of 
reasonable attorney's fees. As Appellant has sought to 
demonstrate, the record shows that there is presently a vacancy 
available in the department for which he is qualified because 
of his demonstrated ability, his academic background and 
Academy experience and that the Academy has current coaching 
needs for which he is highly suitable. Appellant asks that 
he be appointed to this vacancy with proper equitable relief 
in terms of back pay, salary level and time for tenure con­
sideration, and protective relief in terms of contract length,

-28-



and that he be awarded a reasonable attorney's fees. 
Such relief is clearly an appropriate remedy within the

ceeding, a final element of the relief sought should be 
injunction against the Academy requiring it to in­

stitute effective procedures for assuring equal employ­
ment opportunity and to implement a working affirmative 
action program at that institution. Such relief presently 
however, is unnecessary since the Academy is already under 
both Congressional and Executive orders to do the same 
and the Commission is in a position to assess and enforce 
these requirements.

meaning of Title VII § 717.

Were this a court action and not an agency pro-

Respectfully submitted,

^ ........BARRY L. GOLDSTEIN 
JAMES C. GRAY, JR.

10 Columbus Circle
New York, New York 10019

Attorneys for Appellant Brown

-29-



AFFIDAVIT

JAMES C. GRAY, JR., being duly sworn, deposes

and says:
1. That he is one of the attorneys of record in 

this matter.
2. That he is a member of the Massachusetts bar 

and the bar of the District of Columbia (admitted 

June 20, 1974).
3. That he has expended between January 1973 

and the present at a minimum the following amounts of 
time as an attorney for the complainant in this action:

1) Interviewing Complainant and 
meeting with the assigned 
investigator at King's Point 12 hours

2) Preparation of complaint and 
interrogatories for civil 
action, Brown v. Dent, (E.D.N.Y. 
Civil Action No. 73-C-510) 10 hours

3) Preparing memorandum of law in 
order to obtain answers to said 
interrogatories which formed 
part of the evidence relied on 
at the hearing 39 hours

A . 1 -



4) Deposition of Captain Albert 

Negratti, deposed by the U.S. 
attorney for the purposes of 
this hearing or trial (said 
deposition was never tran­
scribed, however, through no 
fault of Appellant and does 
not appear as part of the 
record)

5) Analysis of Interrogatory 
Answers and Investigator's 
Report, interviewing witnesses, 
preparing pre-hearing memorandum, 
preparation of Affidavit of 
Janus Poppe and documents

6) Hearing
7) Preparation of Appeal

7

- 83
-  22 
- 35

209

4. That the following attorneys with whom he is or 
was associated during that period of time expended at the 
minimum 84 hours in connection with this matter in the 
following amounts of time:

A) Barry L. Goldstein, Esquire
1) Interview client and pre­

paration of letters 5

hours

.5 hours 

.5 hours
_ hours

hours

hours

A. 2-



2) Preparation of Complaint 
and Interrogatories

3) Attendance in Court for 
opposition to Motion to 
Extend Time

4) Consultations with client

B) Mary Hilgerman, Esquire
(law student at the time)

1) Preparation of Complaint 
and Interrogatories

2) Meeting with investigator 
at King's Point

C) Kenneth Dious, Esquire
Preparation for and
Attendance at hearing

12 hours

4 hours 
__3
241 hours

35 hours

9 hours 
34 hours

26 hours

James C. Gray, Jr.

Sworn to before me this 
day of August, 1974

Notary Public