Brown v Dent Memorandum in Support of Plaintiffs Motion for Summary Judgment

    IN THE UNITED STATES DISTRICT COURT 
FOR THE EASTERN DISTRICT OF NEW YORK

CIVIL ACTION No. 73-C-510

RICARDO R. BROWN,

Plaintiff,

- v -

FREDERICK DENT, et al..

Defendants.

MEMORANDUM IN SUPPORT OF PLAINTIFF’S 
MOTION FOR SUMMARY JUDGMENT AS TO HIS 
ENTITLEMENT TO THE RELIEF REQUESTED 
BY COUNT ONE OF HIS AMENDED COMPLAINT

JACK GREENBERG 
CHARLES STEPHEN RALSTON 
BARRY L. GOLDSTEIN 
JAMES C. GRAY, JR.
ULYSSES GENE THIBODEAUX 

10 Columbus Circle 
Suite 2030
New York, New York 10019 
(212) 586-8397

Attorneys For Plaintiff.



IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF NEW YORK

RICARDO R. BROWN,
Plaintiff, :

CIVIL ACTION 
NO. 73-C-510

Defendants.

-against-
FREDERICK DENT, et al.,

MEMORANDUM IN SUPPORT OF PLAINTIFF'S 
MOTION FOR SUMMARY JUDGMENT AS TO HIS 
ENTITLEMENT TO THE RELIEF REQUESTED 
BY COUNT ONE OF HIS AMENDED COMPLAINT

I.

INTRODUCTION

Plaintiff Ricardo R. Brown served at the United States 
Merchant Marine Academy for two years as an instructor-trainee 
in the Academy's Department of Physical Education and Athletics.
The Instructor-Trainee program in which he participated was part 
of the Academy's affirmative action program and was designed to 
give minority and women candidates Academy-level teaching ex­
perience and the necessary training required to serve as Instructor 
at the Academy or a similar institution. During his second year, 
Mr. Brown applied on two occasions for a regular faculty appoint­
ment when vacancies arose in his department and on both occasions



a white person from outside of the Academy was hired to fill the 
position. Mr. Brown is black. Towards the end of his appointment 
Mr. Brown requested a temporary appointment which would allow him to 
continue to serve through the end of the academic year. This re­
quest was also denied.

In January 1973, when his appointment ended, Mr. Brown 
filed a formal complaint of racial discrimination against the 
Academy with the Department of Commerce. Pursuant to the 1972 
amendments to Title VII of the 1964 Civil Rights Act, 42 U.S.C. 
§2000-e, and the regulations promulgated by the United States Civil 
Service Commission under that Title, Mr. Brown sought relief through 
the requisite administrative process. He met with an investigator 
and presented a written statement of events surrounding his charges, 
including relevant documentation.

In April 1973, plaintiff through his counsel initiated 
the current action pursuant to 42 U.S.C. §1981 and served interro­
gatories on defendants. As the court may recall, a stay of pro­
ceedings in this suit was agreed to by respective counsel in light 
of the ongoing administrative process. Defendants did provide 
answers to the interrogatories which were served on them.

In May 1973, an investigator's report was presented to the 
Maritime Administration and by a letter dated May 29, 1973, the 
Academy's Equal Employment Opportunity Officer, Captain Renick, 
wrote Mr. Brown telling him of the proposed disposition of his 
complaint; no relief was offered. Plaintiff requested a hearing 
before a Civil Service Appeals Examiner and a hearing was held on 
February 20-21, 1974 before the Honorable Robert J. Shields. A

2



transcript of the two-day hearing was prepared (Exhibit "E" to the 
Amended Complaint). By a letter dated April 22, 1974, the Depart­
ment of Commerce informed plaintiff of their decision which adopted 
in toto the Examiner's "Findings and Recommended Decision"(Exhibits 
"A" and "B" to the Amended Complaint). In sum, the Department of 
Commerce determined that discrimination on the basis of race had 
occurred and had affected plaintiff's employment opportunities 
and recommended that he be appointed to the next vacancy in the 
Department.

Counsel for plaintiff filed a Notice of Partial Appeal 
on May 8, 1974, to the Civil Service Commission challenging the 
adequacy of the relief offered in that the only thing plaintiff 
received was a promise, at best, of future employment at some 
indefinite, hypothetical future time (Exhibit "C" to the Amended 
Complaint). Specifically, plaintiff sought (1) an offer of 
immediate appointment to a vacancy in the Department which had 
arisen since plaintiff's departure and which had not been filled, 
facts which were brought out at the hearing; (2) back pay for 
income lost; (3) equitable contract and tenure terms; and (4) 
reasonable attorneys' fees. The clear effect of the Department 
of Commerce decison was that plaintiff had won but won nothing, 
while the Academy had lost but lost nothing. The remedy was 
totally inadequate.

In November 1974, the United States Civil Service Com­
mission's Appeals and Review Board affirmed the Department of 
Commerce's decision (Exhibit "D" to the Amended Complaint). The 
Commission, thus, denied plaintiff any further relief beyond that

3



given by the Department of Commerce which was tantamount to no 
relief at all.

Plaintiff therefore amended his complaint in December 
1975 to reflect the completion of the administrative process 
under Title VII and to seek from this Court the relief wrongfully 
denied him by the Department of Commerce and the Civil Service 
Commission. In addition, he amended his complaint to include a 
second count naming the Commission and its members as additional 
Parties defendant. Count Two is a class action on behalf of all 
federal employees who seek relief from alleged discriminatory 
acts by federal agencies and prays for additional declaratory and 
injunctive relief which would require defendants to properly 
implement Title VII by correctly applying the law as developed 
by providing corrective relief to successful complainants at the 
administrative level.

The instant motion for Summary Judgment is directed 
towards Court One of the Amended Complaint relating to plaintiff's 
entitlement to remedial relief which would help to make him whole. 
While Count Two is not directly addressed herein, several of the 
discussions of applicable Title VII law may be instructive on the 
Commission's misapplication of Title VII.

4



II.

PLAINTIFF HAVING PROVEN DISCRIMINATION 
AT THE ADMINISTRATIVE LEVEL AND BY THE 
FACTS IS ENTITLED TO SUMMARY JUDGMENT 
ON THE ISSUE OF DISCRIMINATION.________

As a result of the administrative record, the Depart­
ment of Commerce adopted the Examiner's finding that:

... There is evidence, however, that the Academy 
and its administrators employed various vehicles 
of discrimination 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 discrimination in 
connection with the failure to appoint Ricardo R.
Brown to a position on the Kings Point faculty.
(Exhibit "A", p.2)(emphasis added)

This admission of discrimination should be conclusive on the
issue of discrimination. Findings of discrimination by a
federal agency are extremely rare since the agencies have an
interest in not finding discrimination.

The facts of this case clearly show the correctness 
of the Department of Commerce's determination of discrimination.
A review of the Academy's treatment of plaintiff's three applica­
tions for appointment, especially when viewed against the Academy's 
employment record with regard to black faculty, leads to the in­
escapable conclusion that racial discrimination occurred and 
that plaintiff was denied equal employment opportunity.

Under these circumstances, plaintiff is entitled to 
summary judgment on the issue of discrimination: as a matter of 
law, defendants by their acts of commission and omission have 
violated plaintiff's rights and Title VII.

5



A . The Department of Commerce Has Admitted that 
Discrimination Occurred in the Academy's Treatment 
of Plaintiff's Efforts to Obtain a Faculty Appointment

The Assistant Secretary for Administration for the
Department of Commerce stated in his letter to plaintiff of
April 22, 1974, notifying him of the agency's final decision, that

It is my decision that your allegation of 
discrimination because of race is supported 
by the evidence of the record, (Exhibit "A", p.2^.
The Assistant Secretary also adopted in. toto the

Examiner's Findings and Recommended Decision which in pertinent
parts stated the following (references are to page numbers in
Exhibit "B" the Examiner's Report):

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.
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, [p.4-5]
We found in the course of the hearing and as 
the result of information contained in the 
investigative report that there were numerous 
occasions upon which the Academy bent the re­
gulations or obtained waivers for certain in­
dividuals 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, [p.5]
The United States Merchant Marine Academy at 
Kings Point, New York had an affirmative 
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 
Kings Point faculty [p.6](emphasis added)
A Mr. Kenneth Bantum, a Black was a member of 
the faculty for three years. He left the

6



faculty when, despite the unanimous recom­
mendation of the Ad Hoc Committee, Admiral 
Engel, the Academy Superintendent, refused 
to grant Mr. Bantum tenure.

*  *  *

Admiral Engel indicated that it was his 
own personal decision, because of a bad 
experience he had had in the past, 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. [p. 7]
It is our opinion that the lack of sensitivity 
towards the problems of integration demonstra­
ted by the personnel at the Academy is clear 
evidence of institutional discrimination, [p. 8]
It is a very rare case in this day and age 
when we find direct evidence of discrimination.
In most cases discrimination is of a subtle 
nature, it is accomplished through various 
vehicles. One of the vehicles of discrimination 
is failing to adhere strictly to standards and 
requirements for position appointments. Another 
is in failing to publish changes in requirements, 
The evidence is that the Academy is guilty of 
both of these offenses. (emphasis added.)
It is my opinion that there is no direct evidence 
of discrimination in this case. However, I do 
feel that there is substantial circumstantial 
evidence which clearly indicates there is dis­
crimination against Blacks being appointed to the 
faculty at Kings Point. [p. 8]

Having admitted that discrimination occurred, 
defendants cannot be heard to contest the validity of their own 
finding.

7



In Reynolds v. Coomey, Civ. Act. No. 74-4068-C
(D. Mass, filed March 19, 1976), a finding of discrimination 
was made at the administrative level by the agency and plaintiff 
brought suit to obtain appropriate relief. The court, in con­
sidering a motion by the government for summary judgment or for 
dismissal, denied the motion and found the government's admission 
of discrimination to be conclusive on the issue. The court 
stated: "On the present state of the record, the defendants have 
been found guilty of racial discrimination, and there remains now 
only the question of whq.t relief will make the plaintiff whole 
for the wrongs concededly done to her." (Slip Opinion attached, 
at 5-6)

The Supreme Court in its June 1, 1976 opinion in 
Chandler v. Roudebush, _____ U.S._____ , 44 U.S.L.W 4709, has in­
dicated in a footnote the propriety of such an approach. Holding 
that Congress gave federal employees the right to a trial de_ novo 
under the 1972 Amendments, the Court stated:

The goal may have been to compensate for the 
perceived fact that "[t]he Civil Service Commission's 
primary responsibility over all personnel matters in 
the Government . . . create[s] a built-in conflict 
of interest for examining the Government's equal 
employment opportunity program for structural defects 
which may result in a lack of true equal employment 
opportunity." Senate Report, supra, n.l at 15.

Prior administrative findings made with respect 
to an employment discrimination claim may, of course, 
be admitted as evidence at a federal sector trial de 
novo. See Rule 803(8)(C) of the Federal Rules of 
Evidence. Cf. Alexander v. Gardner-Denver Co., supra,
415 U.S. at 60 n.21. Moreover, it can be expected 
that in the light of the prior administrative pro­
ceedings, many potential issues can be eliminated 
by stipulation or in the course of pretrial proceed­
ings in the District Court. 
lf.it- V S i.V .  ly-llL'H-h 1

8



As a matter of judicial economy and fairness along 
the lines of the doctrines of collateral estoppel, res adjudicata, 
and preclusion from taking inconsistent positions, the agency's 
finding of discrimination which is an admission against its 
interest should be conclusive.

B. The Facts Show That Plaintiff Was Denied Equal
Employment Opportunity And Was The Victim of The 
Academy's Racially Discriminatory Practices_____

Plaintiff served for two years as a Teaching Fellow 
at the Academy. His performance of his duties was of such 
quality that he received excellent evaluations from his super­
visors, including defendant Negratti.

During the second year of his tenure at the Academy, 
two faculty vacancies in the Department of Physical Education 
and Athletics became available and plaintiff applied for each. 
Despite plaintiff's performance and qualifications, his appli­
cations were treated in a perfunctory manner and white applicants 
with no previous experience at the Academy hired. Plaintiff 
then sought a temporary appointment, but again his request was 
perfunctorily denied.

The Academy, as of the date of the Department of Com­
merce's decision, had had only one black ever to serve as a regular 
faculty member. The Academy has had approximately 90 regular 
faculty members during the period in question.

The Instructor-Trainee Program in which plaintiff par­
ticipated was intended as a mechanism for preparing minority 
group graduate students for faculty positions at the

9



Academy. While there was no assurance of appointment, a 
successful participant in the program would be qualified 
to compete for a position if one should arise. The 
program was part of the Academy's affirmative action 
program.

The Academy did not announce the first vacancy 
that arose in plaintiff's Department. The Academy did 
not establish an Ad Hoc Committee to recruit candidates 
as is normally done when filling vacancies. At the time, 
that the waiver of the Ad Hoc Committee requirement was 
sought,the Academy had already made an offer to a white 
applicant, a Mr. Daniel Buckley.

Plaintiff applied for a faculty position during 
this period and his application was summarily rejected.
In terms of qualifications required for a faculty position 
in the Department, plaintiff was qualified: his bachelor's
degree was in physical education and his master's degree 
to be received prior to the effective date of the appoint­
ment was also in that field; plaintiff had one and a half 
year's college level teaching experience at the Academy.
Mr. Buckley on the other hand, did not meet the required 
qualifications for a faculty position: his bachelor's
degree was in history and the master's degree he received 
just prior to the effective date of the appointment was 
in secondary school administration; he had no college 
level teaching experience, having taught various subjects 
at the high school level. The Academy had to seek a 
waiver of qualification standards in order to hire

10



Mr. Buckley, and the officials did so.
After plaintiff's application for a position was 

received, the Academy proceeded to inform him that he could 
not be considered for appointment because he had not re­
ceived his master's degree and had not completed his second 
year of his Instructor-Trainee appointment. These reasons 
were clearly pretextual in light of the fact that the offi­
cials knew that plaintiff was receiving his master's degree 
that summer and stood in that regard in the same position 
as Mr. Buckley and that plaintiff's Instructor-Trainee 
appointment was three-fourths completed while Mr. Buckley 
had no college-level teaching at all.

During the summer of 1972, a second vacancy arose 
when the Academy's only black faculty member, Kenneth Bantum, 
resigned after being denied tenure by the Superintendent.
The Tenure Committee had reviewed Mr. Bantum's performance 
over his three years on the faculty and recommended him for 
tenure. The Admiral arbitrarily rejected Mr. Bantum for 
tenure. His explanation for this act was that he had decided 
not to grant tenure before the completion of four year's 
service. The Tenure Committee was apparently totally unaware 
of this alleged change of policy since they recommended 
Mr. Bantum without hesitation and without a single negative

11



vote. An Ad Hoc Committee was formed to recruit and 
select candidates to fill the Bantum vacancy. Plaintiff 
applied for this position. The Ad Hoc Committee never inter­
viewed plaintiff. The Academic Dean, James Poppe, urged the 
Committee to consider plaintiff for the position. Defendant 
Negratti reported to the Dean that qualified applicants were 
still being sought to fill the vacancy on November 2, 1972.
Two weeks later, despite another exhortation from the Dean to 
consider plaintiff, the Committee selected Mr. John Sussi, a 
white applicant, to fill the vacancy. The Academic Dean 
refused to endorse the selection but Mr. Sussi was hired over 
Dean Poppe's objections. Mr. Sussi had a master's degree in 
guidance while plaintiff's master's was in the field of physical 
education. Plaintiff had successfully taught at the Academy 
for almost two years; Mr. Sussi was new to the Academy.

The Academy attempted to overcome the ineluctable 
conclusion of racial discrimination arising from the facts 
surrounding these appointments by relying on their coaching 
needs as justification for these decisions. Mr. Buckley was 
hired with collateral duties as basketball coach and 
Mr. Sussi as an assistant football coach and track coach.

1/

1/ At the hearing, Admiral Engel attempted to assert that 
he had rejected two white faculty members who had been 
recommended the year before for tenure after three years 
and granted them tenure after four years. The record showed, 
however, that the first year these two were considered they 
were not highly recommended for tenure by the Committee, 
while the second year they were.

12



This attempted justification whether viewed as pretextual or 
valid does not overcome the conclusion of racial discrimina­
tion in the treatment of plaintiff Brown.

If viewed as a valid business requirement for con­
sideration as a faculty member in the Department, the ques­
tion must be asked why was plaintiff not informed of this and 
efforts made to assure that he obtained coaching experience 
during his instructor-traineeship. Plaintiff's demonstrated 
abilities and his academic preparation indicate that he would 
have performed well. The evidence shows that plaintiff lacked 
coaching experience not coaching ability. Plaintiff approached 
on his own the baseball and soccer coaches but was told his 
assistance was not needed. During the period following 
Mr. Bantum's resignation, plaintiff could have been afforded 
an opportunity to show his coaching ability. He was not. If 
coaching is taken as a valid criterion for employment, then 
the Academy operated its Instructor-Trainee Program in such 
a way that it would be impossible for plaintiff to ever 
qualify, thus denying him equal employment opportunity in 
violation of Title VII and the Executive Order.

On the other hand, there is sufficient evidence in 
the record to demonstrate that the Academy's reliance on its 
coaching needs is pretextual in that the appointments were 
for faculty positions as educators and not coaches and the 
coaching needs could be taken care of in other ways. The 
Academy obtains its coaching staff from three different 
sources: (1) some are members of the Department of Physical

13



Education and Athletics, (2) some are faculty members from 
other academic departments and (3) others are not on the 
faculty but are retained as coaches by the Alumni 
Association.

The Rubino-Frost Report in 1971 found the Academy 
lacked qualified instructors in the Department. The 
Academy hired Mr. Buckley whose lack of qualifications have 
already been noted. With regard to the Bantum vacancy, it 
should be noted that the Dean Poppe characterized the foot­
ball and track requirement added by the Committee as "dis­
criminatory and written in such a manner that they fit a 
particular candidate." Plaintiff could have assisted the 
football coaching staff during the fall of 1972. The 
Academy could have hired an outside coach if necessary 
instead of writing the football coaching requirement in­
tractably into the position. The track coach was a faculty 
member in another department and wanted to remain as coach. 
Plaintiff could have assisted the track coach as a collateral

14



duty thus meeting the Academy's coaching needs.
The Academy's racially disparate treatment was ex­

emplified by the handling of plaintiff's request for "an 
excepted temporary position" when contrasted with the hand­
ling of Mr. Buckley's appointment. The Academy's officials 
went to extraordinary lengths to obtain waivers of the re­
gulations and requirements for Mr. Buckley, a white whom 
they wished to hire and who lacked the necessary quali­
fications for appointment. When plaintiff Brown requested 
a temporary position, his request was perfunctorily denied. 
At the hearing, defendant O'Grady, the Academy's Personnel 
Officer, gave testimony which shows that in May of 1973, 
six months after Plaintiff's Request, he learned from the 
Maritime Administration's Personnel Officer that surplus 
instructor-trainee funds could be utilized to employ

2/

2/  The Assistant Secretary in his final decision speci­
fically quoted the following passage from the Examiner's 
"Findings and Recommended Decision:"

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 demonstra­
ted 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. [Exhibit 
"A" p. 2, Exhibit "B" p. 9]

The Examiner went on to say:
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. 
[Exhibit "B", p. 9]

15



temporarily a minority instructor [Exhibit "E" at 373-379]. The 
surplus funds existed because the Academy had not been able to 
employ as many instructor-trainees as they had funds for. If 
the Academy had been interested in retaining a qualified black 
instructor, if only temporarily, some effort would have been 
made to act upon plaintiff's request. None was made and his 
request was summarily rejected.

The finding of discrimination made by the Department 
of Commerce is more than supported by the facts and evidence in 
the record. In Hackley v. Johnson, 360 F.Supp 1247, (D.D.C.
1973) the district court stated in dictum;

Discrimination is a subtle fact.
It is as difficult to identify as the 
origin and causes of many odors. If 
it is present anywhere in the federal 
establishment, it must be promptly 
extinguished. 360 F.Supp 1252.

Discrimination at the Academy has been detected and 
must be promptly extinguished.

16



III.
HAVING ESTABLISHED UNLAWFUL DISCRIMINATION 
PLAINTIFF IS ENTITLED TO THE FULL RANGE OF 
EQUITABLE RELIEF PROVIDED BY TITLE VII

The United States Supreme Court has made it clear that 
a federal employee in a Title VII action is entitled to the same 
rights as a private employee and that the district courts have 
broad equitable powers to fashion appropriate relief to make the 
victims of discrimination whole by restoring them as far as possi­
ble to the position where they would have been were it not for 
unlawful discrimination.

In Chandler v. Roudebush. _____ U.S._____ , 44 U.S.L.W
4709, (June 1, 1976) the Supreme Court unanimously held that federal 
employees have the same right to a trial de_ novo as is enjoyed by 
private sector or state government employees under the amended Civil 
Rights Act. The Court commenced its discussion of the case with 
the following statement:

In 1972 Congress extended the protection of Title VII 
of the Civil Rights Act of 1964, 78 Stat. 253, as amended 
42 U.S.C. §2000e et seq.(1970 ed. Supp.IV) to employees of 
the Federal Government. A principal goal of the amending 
legislation, the Equal Employment Opportunity Act of 1972, 
Pub.L. 92-261, 86 Stat. 103, was to eradicate "tentrenched 
discrimination in the Federal service1" Morton v. Mancari,
417 U.S. 535, 547, by strengthening internal safeguards 
and by according " falggrieved \federal) employees or appli­
cants . ♦ . the full rights available in the courts as are . , 
granted to individuals in the private sector under Title VII-— ' 
The issue presented by this case is whether the 1972 Act 
gives federal employees the same right to a trial de_ novo 
of employment discrimination claims as "private sector" 
employees enjoy under Title VII.

1/ S.Rep. No.92-415, 92nd Cong., 1st Sess.,
16(1971), hereinafter cited as Senate Report. 

44 U.S.L.W 4710 (emphasis added).

17



As noted above, the Court unanimously held that federal employees 
were entitled to the same right to a trial de_ novo as "private 
sector" employees enjoy under Title VII.

Although the Chandler decision was specifically 
addressed to the trial de_ novo issue, it clearly follows from 
the above quoted language of the court that federal employees 
also have the same right to all the relief afforded to a success­
ful private employee under Title VII. Section 717(d) of the 1972 
Amendments makes this clear. Section 717(d) gives federal employees 
the right to bring civil actions for discrimination in employment 
and explicitly provides that "[t]he provisions of Section 706(f) 
through (k), as applicable, shall govern civil actions brought 
hereunder." 42 U.S.C. § 2000e-16 (d) . Section 706 (g), 42 U.S.C.
§ 2000e-5(g) is the remedial provision of Title VII of the 1964 
Civil Rights Act and directs a district court to "order appropriate 
relief" upon finding that an unlawful employment practice has been 
committed. Section 706(k), 42 U.S.C. § 2000e-5 (k) allows a district 
court the discretion to grant the prevailing party a reasonable 
attorney's fee as part of the costs.

3 / §706(g) of Title VII, 42 U.S.C. §2000e-5(g), states in
pertinent part:

If the court finds that the respondent has inten­
tionally engaged in or is intentionally engaging 
in an unlawful employment practice charged in the 
complaint, the court may enjoin the respondent from 
engaging in such unlawful employment practice, and 
order such affirmative action as may be appropriate, 
which may include, but is not limited to, reinstate­
ment or hiring of employees, with or without backpay 
. . . or any other equitable relief as the court 
deems appropriate.

18



The Supreme Court recently addressed the breadth and 
flexibility of the remedial provision §706(g) of Title VII in 
Franks v. Bowman Transportation Co., 44 U.S.L.W 4356 (U.S. March 
24, 1976). In considering retroactive seniority as a valid correc­
tive device, the Supreme Court incorporated in its opinion the 
following from the legislative history:

"The provisions of [§706(g)] are intended to give the 
courts wide discretion exercising their equitable 
powers to fashion the most complete relief possible 
. . . [T]he Act is intended to make the victims whole 
and . . . the attainment of this objective ! I I re- 
quires that persons aggrieved by the consequences and 
effects of the unlawful employment practices be, so 
far as possible, restored to a position where they 
would have been were it not for unlawful discrimination " 
(quoting Section-by-Section Analysis of H.R. 1746, 
accompanying the Equal Employment Opportunity Act of 
1972-Conference Report, 118 Cong. Rec. 7166, 7168 (1972)).
44 U.S.L.W at 4360 (Emphasis added).

The Court proceeded to state that "this is emphatic confirmation 
that Federal courts are empowered to fashion such relief as the 
particular circumstances of the case may require to effect resti­
tution . . . "  Id.

In Albemarle Paper Co. v. Moody, 422 U.S. 405, 45 L.Ed.
2d 280 (1975), the Court indicated that district courts in effec­
tuating remedial relief should recognize that the objective is 
"to make persons whole for injuries suffered on account of em­
ployment discrimination." 422 U.S. at _____ , 45 L. Ed. 2d at 297.
In doing so, " ft]he 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." Id.

Under the circumstances of this case, plaintiff was 
entitled to an offer of immediate employment with appropriate

19



seniority and rank, to back pay for any income loss he may have 
suffered and to a reasonable attorneys fee, as is more fully 
demonstrated below. "Congress clearly intended to give public 
employees the same substantive rights and remedies that had pre­
viously been provided for employees in the private sector; . . . "  
Douglas v. Hampton, 512 F.2d 976, 981 (D.C.Cir. 1975)

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 discrimination 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).

It is clear from the facts of this case that while 
discrimination was found, the remedies were not sufficient to 
effectuate the policies of this section.

A. Plaintiff is Entitled to Injunctive Relief Requiring 
the Academy to Offer Him Immediate Appointment to the 
Kings Point Faculty____________________________________

The Department of Commerce and the Civil Service Com­
mission could have ordered plaintiff's appointment to the faculty 
either in lieu of Mr. Buckley or Mr. Sussi or as an additional faculty 
member without a preexisting billet. This was not, however, 
necessary since the record of the hearing showed that a faculty

20



position was available as of December 1973. Defendant Zielinski 
retired and was not replaced.

Injunctive relief requiring the Academy to offer plain­
tiff an appointment is clearly appropriate and dictated by the 
Department of Commerce's decision that plaintiff be offered th

AJnext available vacancy.
The Academy cannot be allowed to determine when it feels 

it is convenient to grant plaintiff the relief to which he is 
entitled. To allow the Academy to do so is to make meaningless

4 / Defendant O'Grady admitted at the hearing 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." [Exhibit 
"E" at 362-363] .In reply to this contention that the department 
is overstaffed, plaintiff draws the Court's attention 
to the "Rubino Report" which was introduced as Com­
plainant's Exhibit 1. Defendants have admitted that 
the report showed the Physical Education Department to 
be understaffed and in need of qualified people, in­
dividuals with degrees in physical education. Plain­
tiff also calls the court'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. [Exhibit "E" 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." 
[Exhibit "E" at 278]. Once again, plaintiff 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 qualification."

21



the concept of remedial relief.
With respect to the conditions of plaintiff's appoint­

ment as a regular faculty member, the Court need no further 
citation than Franks v. Bowman Transportation Co.. 44 U.S.L.W. 
4356 (U.S. March 23, 1976), for the proposition that an award 
of retroactive seniority to the date that plaintiff would have 
assumed a position on the faculty of the Academy had it not been 
for the Academy's discriminatory refusal to hire is appropriate 
under §706(g) of Title VII. If plaintiff desires to accept a 
position on the faculty at the completion of this litigation, as 
a matter of equity, he should be eligible for consideration for 
tenure after a minimum period of time and should be appointed 
at a commensurate step on the pay scale.

5 / Courts have granted successful Title VII claimants relief 
in the form of an award of "front pay" in cases where the 
defendants are unable to place the claimant in his right­
ful place, thus compensating the claimant monetarily until 
an appropriate position becomes available. See, Franks 
v. Bowman Transportation Co., supra; Patterson v. American
Tobacco Co., _____F .2d _____ , 11 E.P.D. 5 10,470 (4th Cir.
1976) and White v. Carolina Paper Board Co., 10 E.P.D. 
f 10,470 (W.D.N.C. 1975).

22



B. Plaintiff is Entitled To Back Pay For Any Income 
Lost Because of the Academy's Failure to Appoint Him

Plaintiff from the filing of his formal statement to 
the investigator has sought back pay and is entitled to it. Such 
back pay is the difference between his interim earnings or the 
amount earnable with reasonable diligence, see 42 U.S.C. §2000e-5(g), 
and what he would have earned if he had been retained at the Academy 
as an Assistant Professor at an appropriate grade level.

Sections 706(g) and 717(b) of Title VII specifically 
identify an award of back pay as an appropriate remedy under 
Title VII.

In Albemarle Paper Co. v. Moody, ____  U.S. _____ , 45
L.Ed 2d 280 (1975), the Supreme Court has spoken persuasively
about the importance of back pay. Citing Griggs v. Duke Power
Co.,401 U.S. 424, 429-30, 28 L.Ed 2d 158, that the primary objective
of Title VII was a prophylactic one "to achieve equality of
employment opportunities and remove barriers that have operated
in the past to favor an identifiable group of white employees
over other employees," the Court went on to state:

Backpay has an obvious connection with this 
purpose. If employers faced only the prospect 
of an injunctive order, they would have little 
incentive to shun practices of dubious legality.
It is the reasonably certain prospect of a backpay 
award that "provide[s] the spur or catalyst 
which causes employers and unions to self- 
evaluate their employment practices and to 
endeavour to eliminate, so far as possible, 
the last vestiges of an unfortunate and 
ignominious page in this country's history."
(citation omitted)
45 L.Ed 2d 296-297.

23



The Court further stated:
. . . [G]iven a finding of unlawful discrimination,
back pay should be denied only for reasons which, 
if applied generally, would not frustrate the 
central statutory purposes of eradicating discri­
mination throughout the economy and making persons 
whole for injuries suffered through discrimination.
45 L .Ed 2d 298-299

Clearly, when the federal government is the discriminating party, 
especially in light of the Executive Orders, there is a great 
need for all the prophylactic measures possible.

An award of back pay while of a prophylactic nature 
has been held not to be punitive in nature. The courts have 
developed a strong body of law regarding back pay in Title VII 
actions against private employers. "Back Pay is clearly an 
appropriate remedy for Title VII violations." Head v. Timken Roller 
Bearing Co., 486 F.2d 870, 876 (4th Cir. 1973). "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, 802 (4th Cir. 1969), cert. den. 404 U.S. 10006 (1971') . See,
Johnson v. Goodyear Tire and Rubber Co., 491 F.2d 1364 (5th Cir.
1974); U.S. v. Georgia Power Co., 474 F.2d 906, 921 (5th Cir. 1973). 
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); U.S. v.
Hayes International Corp., 456 F.2d 112, 121 (1972); U.S. Georgia 
Power Co., 474 F.2d 906, 921 (5th Cir. 1973); Moody v. Albemarle
Paper Co., 474 F.2d 134, 142 (4th Cir. 1973).

Because of the non-punitive nature of back pay, an

24



employer's good faith actions do not constitute a valid ground 
for the denial of an award . Franks v. Bowman Transportation Co., 
supra; Johnson v. Goodyear Tire and Rubber Co., supra. The issue 
is whether a discriminatee was economically injured. Pettway v. 
American Cast Iron Pipe Co., 494 F.2d 211, 260 (5th Cir. 1974). 
"Neither benign neglect nor activism will be judicially tolerated 
if the outcome of such practices is racially discriminatory and 
results in monetary loss." Baxter v. Savannah Sugar Refining Corp., 
495 F .2d 437 (5th Cir.), cert, denied, 419 U.S. 1033 (1974)

In Johnson v. Goodyear Tire and Rubber Co., supra, the 
Court concluded that as a matter of law, a discriminatee is pre­
sumptively entitled to back pay unless evidence is presented to 
establish that an alleged discriminatory practice did not affect 
him. In order to deny back pay, a defendant must show by "con­
vincing evidence" factors which would have retarded or prevented 
the employee's progression. Any doubts should be resolved in 
favor of the discriminatee who is the innocent party. Baxter v. 
Savannah Sugar Refining Corp., supra.

Applying the above principles to the area of federal employ­
ment discrimination, an award of back pay to the plaintiff in the 
instant action is incontestably proper. In Day v. Matthews,
_______ F.2d________ , 11 E .P.D. 510,725 (D.C. Cir. 1976), where
the Department of Health, Education and Welfare did not dispute 
a finding of discrimination but denied the federal employee any 
of the relief sought, namely retroactive promotion and back pay, 
the Court of Appeals remanded the case to the district court 
directing it to award back pay and retroactive promotion unless

25



the defendant, HEW, by clear and convincing evidence, proved that 
even absent the admitted discrimination, the plaintiff still 
would not have been selected. The burden, then, according to 
Day,is not on the discriminatee to show that he would have 
gotten the position but for unlawful discrimination; the burden, 
rather, is on the defendant to show that under no circumstances 
would the discriminatee have gotten the desired position, even 
absent discrimination. Accord, Cooper v. Allen, 467 F.2d 836 
(5th Cir. 1972) .

Federal Courts have awarded back pay to prevailing 
plaintiffs against federal agencies. Robinson v. Warner,
8 E.P.D. 59452 (D.D.C. 1974); Smith v. Kleindienst, 8 F.E.P.
Cases 5752 (D.D.C. 1974) , aff1d in part and revs1d in part sub
nom. Smith v. Levi, ____F.2d______ , 11 F.E.P. Cases 51308
(reversed as to award of interest) (D.C. Cir. 1975) ;
McLaughlin v. Calloway, 9 F.E.P. 510,098 (S.D. Ala 1975).

C. As a Prevailing Litigant, Plaintiff is Entitled
to a Reasonable Attorney's Fee under Section 706 (k)
Section 706 of Title VII provides that"[i]n 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). The 
1972 Amendments to Title VII incorporated §706 (k) to govern 
civil actions brought pursuant to the amendments. 42 U.S.C. 
§2000e-16 (d).

The propriety of granting attorney's fees to success­
ful claimants has been addressed in numerous cases. The Fifth 
Circuit, in Johnson v. Georgia Highway Express, Inc., 488 F.2d

26



714 (5th Cir. 1974) enumerated several guidelines to assist in 
the determination of what is a just and reasonable fee, and 
stated that the purpose of §706 (k) was to effectuate the 
Congressional policy against racial discrimination, and to 
recognize the significance of private enforcement of civil 
rights legislation. In employment discrimination cases, a 
plaintiff not only remedies his own injury, but also that of 
the public, thus vindicating an important Congressional policy 
against discriminatory employment practices. Alexander v . 
Gardner-Denver Co., 415 U.S. 36, 44 (1974). An award of 
attorney's fees thus serves as an encouragement for an 
aggrieved litigant to pursue fully his right not to be discrimi 
nated against in the proper forums.

As Johnson v. Georgia Highway Express, supra,
indicated, the statute was passed to enable clients to obtain
effective counsel who would be willing to undertake a complex
action involving sometimes tedious and expensive preparation.
An award of attorney's fees provides an incentive for attorneys
to accept such cases, especially when:

[E]xhortations towards citizen 
participation can sound some­
what hollow against the background 
of the economic realities of 
vigorous litigation. In many 
public interest cases... the 
average attorney or litigant must 
hesitate, if not shudder, at the 
thought of'taking on' [a finacial- 
ly powerful] entity . . . .  with 
[uncertain] prospect of financial 
compensation for the efforts and 
expenses involved.

27



U. S. v. Operating Engineers, Local Union 3, 6 E.P.D. 58946 (N.D.
Calif. 1973).

The Supreme Court in Albermarle Paper Co. v. Moody,
422 U.S. 405, 45 L.Ed. 2d 280 (1975), indicated that the
rationale of Newman v. Pigqie Park, 390 U.S. 400 (1968), could
equally be applied to the attorney's fees provision of Title
VII. Albermarle Paper Co. v. Moody, supra at 295. Indeed,
Title VII litigants, when acting on behalf of a class and
obtaining injunctive relief, are no different than the Title
II litigants referred to in Newman v. Pigqie Park, supra.
See Clark v. American Marine Corp., 320 F.Supp 709, (E.D. La
1970) aff'd per curiam 437 F.2d 959 (5th Cir. 1971).
In Newman, the Court stated:

... If successful plaintiffs were 
routinely forced to bear their 
own attorney's fees, few aggriev­
ed individuals would be in a 
position to advance the public 
interest by invoking the injunc­
tive powers of the federal courts.
Congress, therefore, enacted the 
provision for counsel fees not 
simply to penalize litigants. . . i 
but. . . to encourage individuals 
injured by racial discrimination 
to seek judicial relief. . . .
390 U.S. 402

In accord with Congressional policy and legislative 
intent, courts have not been reluctant to award attorney's fees 
for work done at both the administrative and judicial levels in 
federal employment litigation. In Parker v. Matthews, 11 E.P.D. 
510,821 (D.D.C. 1976), such fees were awarded pursuant to a 
settlement of a federal employment action. No distinction was 
made for time spent on the administrative and judicial levels.
In making the award, the court observed that in civil rights

- 28



litigation, litigants assume the role of private attorneys 
general who vindicate a Congressional policy against racial 
discrimination. "It is only through attorney's fees provisions 
that litigants can be assured of the competent counsel they need 
for the effective enforcement of their right not to be discri­
minated against" . Id. In accord with Parker v. Matthews is 
Smith v. Kleindienst, 8 F.E.P. Cases 753 (D.D.C. 1973), aff'd. 
sub, nom., Smith v. Levi, 11 F.E.P. Cases 1308 No. 74-1939 (D.C. 
Cir. 1975). It is also interesting to note that a twenty-five 
percent incentive fee or bonus was awarded in Parker, a case 
which did not involve novel or complex legal issues.

Similarly, the court in McLaughlin v. Calloway, supra, 
awarded attorneys' fees to the successful federal plaintiff under 
the 1972 Amendments to Title VII.

In Johnson v. U.S.A., Civ. No. H-74-1343 (D.Md., 
Memorandum and Order of June 8, 1976), the court awarded plain­
tiff attorneys' fees on the basis of his having prevailed on the 
administrative level. The court made clear that attorneys'fees 
were proper regardless of whether the plaintiff prevailed on the 
administrative level or at the judicial level. The court ex­
plained:

Moreover, the clear Congressional intention in 
enacting §717 in 1972 was to create an administrative 
and judicial scheme for the redress of federal em­
ployment discrimination. Brown v. General Services 
Administration, [44 U.S.L.W 4704] at 4706. Sections 
717(b) and (c), 42 U.S.C. §2000e-16(b) and (c) establish 
complementary administrative and judicial enforcement 
mechanisms to achieve the statutory purpose. Idem at 
4706. It is therefore not material whether the party 
seeking the award prevailed at the administrative

29



level or at the judicial level- Both are 
a part of the same enforcement mechanism 
established by the statute. If he is re­
presented by an attorney at either or both 
levels, a successful claimant is entitled 
to an attorney's fee to be awarded in the 
discretion of the court.
(Slip Opinion attached at 7)
In the instant case, counsel was needed to consult 

with the plaintiff, make discovery, prepare and present the 
documentary evidence and testimony given at the administrative 
hearing, prepare the administrative appeal, and bring this suit 
in federal district court. Were it not for plaintiff's 
vigorous prosecution of this matter, it is very questionable 
whether the Academy would ever have become aware in the reason­
ably foreseeable future that the federal equal employment 
opportunity laws and regulations are to be taken seriously.
For this reason and those previously asserted, the plaintiff 
is entitled to reasonable attorneys' fees.

30



CONCLUSION
Federal employees are entitled to the same rights under 

Title VII as are enjoyed by employees in the private and local 
government sectors. Plaintiff is entitled to summary judgment on 
the issue of discrimination on the basis of defendants' admission 
of discrimination and the facts of this case. As a result, 
plaintiff is entitled to the relief prayed for by Count One of his 
Amended Complaint, including an offer of instatement, back pay and 
an award of a reasonable attorneys' fee. For the foregoing reasons, 
Plaintiff's Motion for Partial Summary Judgment on Entitlement To 
Relief Requested By Count One of His Amended Complaint should be 
granted.

Respectfully submitted,

JACK GREENBERG 
CHARLES STEPHEN RALSTON 
BARRY L. GOLDSTEIN 
JAMES C. GRAY, R.
ULYSSES GENE THIBODEAUX 

10 Columbus Circle 
Suite 2030
New York, New York 10019

(212) 586-8397
Attorneys For Plaintiff

31



UNITED STATES DISTRICT COURT 
DISTRICT OF MASSACHUSETTS

Civil Action 
No. 74-406S-C

HELEN H. REYNOLDS 
v.

PATRICK F. COOMEY, 
District Director,

U.S. Immigration and 
Naturalization Service, et al

MEMORANDUM and ORDER 
March 19, 1976

CAFFREY, Ch.J.
This is a civil action brought pursuant to Title VII of 

the Civil Rights Act of 1964, as amended, 42 USCA §2000e, 
et sea. Plaintiff challenges the sufficiency of the remedy 
accorded her as a result of a United States Department of 
Justice Complaint Adjudication Officer's decision that she 
was discriminated against because of her race in the course 
of her seeking promotions while .employed by the United States 
Immigration & Naturalization Servi.ce (INS). The matter came 
before the Court upon the defendants' motion to dismiss or 
for summary judgment.

It is undisputed that plaintiff, a black woman, has 
been an employee in the Boston District Office of the INS 
since 1941, at which time she entered employment as a Clerk- 
Typist, CAF-1. She has been continuously employed by the INS 
since that time except for two periods of maternity leave.
As of the time of the filing of this action, her last



-yyj «r. •.?
jW ff*  • «> m -' - i

promotion was in 1961 when she was promoted to the grade of 
GS-5.

The instant complaint is addressed to allegedly dis­
criminatory acts by defendant Patrick F. Coomey, who was 
Acting District Director, Boston District Office, INS, in 
February 1961, and became District Director on April 29, 1971.

Plaintiff first met with an Equal Employment Opportunity 
(EEO) counselor in November 1973, at which time she alleged 
that she was discriminated against because of her race in 
not being selected for the position of Assistant Chief,
Records Administration and Information Section (RAIS), a 
GS-7 position, on October 2, 1973. After informal attempts 
to resolve the complaint failed, a formal complaint of 
employment discrimination was filed which cited defendant 
Coomey as the discriminating official. Plaintiff alleged that 
a pattern of discrimination was established on the basis of 
prior non-selections for promotion in 1970, 1971 ancj 1972.

Plaintiff was notified on February 6, 1974 by the INS 
EEO officer that, upon investigation,-her allegations of 
discrimination were unsupported. Subsequent to that 
notification, and pursuant to her request therefor, a hearing 
was held on April 22, 1974 before a U/ S. Civil Service 
Commission Examiner. The plaintiff and INS were represented 
by counsel, and oral and documentary evidence was presented.

After the hearing, the Examiner reported his findings 
and proposed remedy. The principal issue address,-cl by the



Hearing Examiner in his report was framed by him as follows:
"Were [plaintiff's] race (Negro) and/or 
sex (female) considerations in her non­
selection for the position of Assistant 
Chief, GS-7, RAIS, on October 2, 1973?"
issues were also raised and addressed by the Examiner

in his report:
" . . .  with respect to seven previous pro­
motional opportunities on which [plaintiff] 
relies . . .  to base her allegations of a 
pattern of discrimination ending in [plaintiff's 
nonselection in October 1973]."

The Examiner found that:
"Mrs. Reynolds was in a dead-end position 
in the Citizenship Branch from which she 
could not reasonably expect any promotion 
notwithstanding her record of good attendance, 
five performance awards, excellent recommenda­
tions for promotion by her first and second 
line supervisors, and approximately 31 years 
of service with INS."

Findings, p. 14, fll4.

The question for the Examiner thus became whether plaintiff 
was denied equal employment opportunity by INS due to the fact 
that she was

"'locked in' the Citizenship Branch, with 
little or no opportunity-to broaden her 
experience in the work done in other 
Branches of [INS], so that she could 
compete with others for [job promotions]."

Findings, p. 14, J14.
The Examiner found that the plaintiff was indeed denied 

equal opportunity for promotion and, in this respect, was the 
victim of what he characterized as "systemic" racial dis­
crimination.

- 3 -



The Examiner found that the Northeast Region of the INS 
has a "Plan of Action for Equal Employment Opportunity," in 
which there are objectives entitled "Enhancement of employee 
skills and upward mobility." (Findings, p.- 14,«I14). These 
objectives prescribe methods by which the particular agency 
can meet the goals of the Plan. The Examiner found that 
plaintiff's first and second line supervisors "knew little or 
nothing" about INS's Plan of Action, (see Transcript of 
Hearing, April 22, 1974, at pp. 51, 55, 61, 62, 65) notwith­
standing the fact that the INS

"has made a commitment and has an obligation 
to make certain that the affirmative action 
plan for equal opportunity is real, workable, 
and utilized by those responsible for 
achieving its goals."

Findings, pp. 14-15, <114.
The Examiner thus concluded that

" . . .  Mrs. Reynolds, as a minority group 
. . . employee . . . was not given con­
sideration for career development under 
the INS affirmative action plan and that 
failure to do so effectively deprived her 
of opportunity for promotions which non­
minority employees enjoyed,-solely by 
virtue of their positions’ in other organized 
units."

Findings, p. 15, Conclusions, #2.
Pursuant to the Examiner's conclusion that, broadly 

viewed, the evidence supported plaintiff's allegation of 
racial discrimination, the Examiner recommended a course of 
action designed to give plaintiff "true equality for pro­
motional opportunity."

- 4 -



The Examiner recommended that the plaintiff be provided 
a career development plan together with priority consideration 
for promotion "to the next position vacancy which shall become 
available for which she would be among the best qualified 
candidates . . . "  Findings, p. 16. He also recommended that 
supervisory personnel of the Boston Office, INS, be given 
training relative to the Agency Plan of Action.

The Examiner's findings and recommendations were adopted 
and incorporated by the Complaint Adjudication Officer in his 
opinion dated July 22, 1974. It was further ordered by the 
Complaint Adjudication Officer that monthly reports be made 
to the Director of EEO until plaintiff was given priority 
consideration resulting in her promotion.

This matter was briefed and argued orally in this Court 
by counsel for the parties. At the hearing the Assistant 
U.S. Attorney representing the federal defendants conceded 
that plaintiff has been a victim of racial discrimination.
The principal area of controversy between plaintiff and the 
federal defendants at the hearing was whether this Court 
should grant a hearing de novo oh the entire matter or merely 
conduct a hearing as to remedy.

In view of the Government's concession that there was 
merit to the discrimination claim, no policy of Title VII of 
the Civil Rights Act can be advanced by conducting a chi novo 
hearing on the merits.

On the present state of the record, the defendants have 
been found guilty of racial discrimination, and there remains

-5-



for decision now only the question of what relief will make 
plaintiff whole for the wrongs concededly done to her. 
Accordingly, it is 

ORDERED:
The defendants' motion to dismiss or for summary 

judgment is denied, and the case will stand for a hearing on 
remedy and damages.

Andrew A. Caffrey, Ch.J...
0

- 6 -



in the united s t m t s  district court
FOR TIIR DISTRICT OF MARYLAND

• JAMES A. JOHNSON :
Plaintiff

v.
UNITED STATES OF AMERICA :
WILLIAM B. SAXBE, Attorney 
General of the United States :

UNITED STATES DEPARTMENT OF 
T1IF. ARMY ;

HOWARD H. CALLAWAY, Secretary 
of the United States :
Department of the Army
UNITED STATES CIVIL SERVICE 
COMMISSION
and
ROBERT E. HAMPTON, Chairman of 
the United States Civil 
Service Commission

Dofondants

Civil No, H-74-1343

Kenneth L. Johnson, Baltimore, Maryland, for plaintiff. '
Daniel M. Clements, Assistant United States Attorney, ,
Baltimore, Maryland, for defendants.

MEMORANDUM -AND ORDER

Claiming discrimination in his employment because of his
race, plaintiff has brought this action under Title VII of the <. . .

. Civil Rights Act of 1964. Named as defendants are various officials 
and agencies of the United States.

The controversy in suit has a lengthy history’ in this 
Court and before various federal administrative bodies. Plaintiff 
initially filed suit in this Court on July 5, 1973. Johnson v. 
Froohlke, Civil No. 72-677-H. Following a hearing in open court on 
January 4, 1973, the government's motion to dismiss the complaint 
was denied. Thereafter, the government moved to remand the case 
to the Civil Service Commission for a hearing and determination on 
the merits of plaintiff's claim that he was the victim of continuing



racial discrimination in his civilian employment by the United''' 
States Army ar. an Illustrator. Finding that the plaintiff had., 
never received a full administrative hearing or determination on 
the merits of his claim and that the United States Civil Service 
Commission was now willing to grant plaintiff a full hearing on 
■the merits, this Court entered an Order on June 25, 1973, remanding ' 
.the case to the Commission for such a hearing and determination, 
without prejudice to the right of the plaintiff to-.refilc an action’ 
in this Court if he were denied the relief he sought.

A black male, plaintiff had been hired by the United ; . “. }.. 

States Army as an Illustrator at the Training Aids Center ("TAC"),- 
Fort Meade, Maryland, on August 1, 1961. In this and his earlier 
suit, plaintiff claims that he was refused promotion because of his 
•race, and he also asserts various other claims of racial discrimin­
ation at TAC. On July 2, 1968, a vacancy in the position of ' ... 
Supervisory Illustrator was announced. Two persons applied for -the 
job,; the. plaintiff and a Mr. Anthon Allred, a white male. The" 
Director of the TAC, Mr. William Gulley, also white, selected x 
Allred, and the latter assumed the higher position on September 8, 
1 9 6 8 . Allred resigned the position as of December 20, 1968, but 
the position was left open until plaintiff finally filled it in
1975. • < ■?....

On August 31, 1970, plaintiff filed a formal complaint 
of discrimination, alleging that he was not selected for the job 
because of his race. The Equal Employment Opportunity Officer at 
Fort Meade rejected the complaint as untimely. On February 3, 1972, 
plaintiff filed another complaint alleging, inter alia, that he 
had been subjected to a continuing pattern of discrimination which 
had prevented him from being promoted to the position of Supervisory 
-Illustrator. On March 8, 1972, the EEO Officer rejected this- 
second complaint as al*;o being untimely. Plaintiff appealed the 
decision to the Board of Appeals and Review, but the decision was 
affirmed. Plaintiff's first suit in this Court followed.

1
Pursuant to this Court's Order of June 25, 1973 in Civil

1 !•
No. 72-677-H, the Civil- Service Commission returned the case to the



Army for processing under Part 713 of the Commission regulations.
The complaint was investigated by a representative of the U. S. Army 
Civilian Appellate Review Office, and a report was submitted on • 
April 17, 1974. The investigator made the following recommendations.

A. That the complainant be informed in writing ,
that his allegation of discrimination in the '  ̂ ‘
matter of denial of promotion because of his race 
(black) is substantiated.
B. That, the complainant be promoted to-the posi- >. 
tion of Supervisory Illustrator, GS-1010-09, in 
accordance with the provisions of Civilian 
Personnel Regulation 713.B-16d.
C. That, the complainant, be accorded full oppor-
tunity to acquire training in the knowledge, skills’ 
and experience required for more responsible posi- 
t.ions, in keeping with the EEO Plan of Action 
Command Objective relating to the.situation wherein 
supervisory positions reflect an imbalance by race 
and sex. s .
D. That appropriate measures be taken to determine, 
the extent of culpability of managers, supervisors , 
and program officials in the discriminatory practices 
cited herein and corrective action be initiated j 
accordingly. . »• • .

On May 14, 1974, the Post Commander at Fort Meade issued
his letter of decision, rejecting recommendations "A" and nBn, 
approving recommendation "C", and approving recommendation D with 
a modification which substituted the word "managerial’* for the word 
"discriminatory" in line three. Dissatisfied with this decision,

s s
plaintiff requested a hearing by an EEO Complaints Examiner. ., .

A hearing was held on July 10 and 11, 1974, at which 
plaintiff appeared with counsel and testified. Thereafter, the 
Examiner submitted his report and recommendation to the Army on 
October 12', 1974. The Examiner recommended a finding of discrimina-• ■ ... i .
tion, .and, noting that since July 1, 1973 the Art Section had had .■••• 

sufficient employees to warrant the appointment of a supervisor,' 
further recommended that plaintiff be promoted to the position of 
Supervisory Illustrator retroactive to February 4, 197(J, which was 
two years before plaintiff had filed his second complaint., It was 
also recommended that the Director of the TAC be,required to attend 

Van appropriate EEO course and that the Post Commander monitor 
personnel actions in the. TAC so as to assure that all employees were



treated equally as to promotions, awards and training. ■ ....
The Army approved the Examiner's report and recommendation 

on November 15, 1974, and by letter of December 11, 1974, offered '
plaintiff his promotion retroactive to September 8, 1968, rather 
than merely to February 4, 1970, as the Examiner had suggested.• 
However, plaintiff had meanwhile instituted this action on December * 
9, 1974, seeking (1) promotion with back pay, (2) compensatory and v 
punitive d a m a g e s (3) a declaratory judgment, (4) an injunction . 
against -future employment discrimination, and (9) costs and attor­
ney's fees.

Presently before the Court are cross-motions for summary 
judgment. Both sides have submitted memoranda of law, and the 
defendants have also filed the 459-page transcript of the adminis- ' 
trative hearing held in July 1974 and numerous documentary..exhibits 
which were considered by the various administrative officials. It 
has been agreed by the parties that, the pending motions should be 
decided by the Court on the extensive record presently before it 
without the necessity of a hearing. The parties have further aqreed■ 
that only two issues remain in this case, namely (1) whether 
plaintiff is entitled to an order enjoining defendants from future • 
acts of discrimination and (2) whether plaintiff is entitled to 
recover a reasonable attorney's fee and costs from defendants.

'•* I _ •
Injunctive Relief ,,

In his motion for summary judgment, plaintiff asks this 
Court to '"enjoin the Defendants from discriminating against the 

'Plaintiff because of his race (black); * * * Flaintiff contends
that because of what has happened in the past, he is entitled to 
an injunction to prevent future racial discrimination against him.

The record here does not "sqpport plaintiff's £laim of
• •• j '

.entitlement to a permanent injunction prohibiting future discrimin--- 
atory acts. On the contrary, the undisputed facts in this case show 
• that no injunction should now issue. As a result of the various 
•administrative proceedings and action taken by the Army pursuant



thereto, plaintiff has now gained everything he was seeking when he 
first asserted his claim against the Army. Ho has been promoted ".. 
to the position of Supervisory Illustrator; his promotion has.been 
made retroactive to September 8, 1968, which was the first date the 
position was filled; and he has been awarded full back pay including 
appropriate yearly increases. In addition, the Director of the 
Center where plaintiff works has been required to have further equal 
employment opportunities training. Finally, the Army has undertaken 
to monitor personnel actions at the Center more closely to prevent 
future racial discrimination as to promotions, awards and training.

Now that plaintiff is a Supervisory .Illustrator, any 
claim of future discrimination against him must necessarily involve 
facts quite different from those which supported the showing of 
discrimination in the past. The record does not. indicate that 
there is any position open at. this time to which plaintiff seeks to 
bo promoted. No allegation to such effect is contained in the 
complaint, nor has plaintiff alleged that since he assumed his new - 
job he has been the subject, of any other kind of racial discrimina­
tion.: Should such discrimination occur at any time" in the future,,
plaintiff is of course free to file another action in this Court, 
after first undertaking his administrative remedies.

, For these reasons, this Court will not enter a permanent
injunction .against the defendants prohibiting future discriminatory 
acts against plaintiff. When the discriminatory practice has been 
terminated and is not likely to recur, it is proper for a court to 
deny injunctive relief. Williams v. General roods Coro., 492 F.2d 
399, 407 (7th Cir. 1974).

IT
Costs and an Attorney's Fee

This action was brought by"plaintiff under'Title VII of 
the Civil Rights Act of 1964, 42 U.s.C. §2000e et seq. Until it 
was amended by the Equal Employment Opportunity Act of 1972, Title 
VII,provided no protection for federal employees. That enactment 
added §717 to the 1964 Act, 42 U.S.C. §2000e-16, which proscribes



for the first time federal employment discrimination and establishes
an administrative and judicial enforcement system. See Drown v.
General Services Administration, 44 U.S.L.W. 4704 (U.S. June 1, 1976).

‘ . Section 706(k) of the Act, 42 U.S.C. §2000b 5(k)
' as'.follows:

(k) In any action or proceeding under this sub­
chapter 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 as a private person.

,provides

In Alyeska Pipeline Service Co. v. Wilderness Society, 1 
421 U.S. 240 (1975), the Supreme Court held that.there must be a 1 
specific statutory authorization for the a;/nrd of an attorney's fee 
in a civil action brought in federal court. In view of the specific 
language of Subsection (k) quoted above (and defendants so concede), 
there is no longer any question' that a federal employee who prevails 
in a. Title VII action may in the discretion of the Court be allowed .''•••i 
costs and attorneys’ fees to be paid by the United-States. The* 
defendants in this case argue that no such award should be made 
here because plaintiff was not "the prevailing party" in this'liti- 
gation and because the relief plaintiff secured was not’ obtained 
in ari "action or proceeding" within the meaning of the statute;- >--t 
This Court would disagree with both of these contentions and will* i-accordingly award plaintiff a reasonable attorney's fee. •

In arguing that to recover his attorney's fee a party must 
prevail in court rather than in administrative proceedings, 
defendants’ overlook both the history of this litigation and the 
Congressional intent in adding §717 to the Civil Rights Act of 1964. 
Plaintiff did originally sue in this Court for relief, and it was 
the Army which moved for a remand so.that the dispute could be . 
heard initially in administrative proceedings. Not completely ’’
satisfied with the relief afforded at the administrative level, 
plaintiff later re-instituted suit, which is now this pending action. 
Certainly, the fact that plaintiff had already filed suit in'this . 
Court and had been expressly authorized to return here if dissatisfied



' with*.th<v a*uiniotrft:telv»i-kk«*uiv.<» i,nd n marked effect on the A m y  s 
•acceptance-of the findings made by the" Honriwr Examiner., 'Thu? JV’the,- 
administrative anti jud i c in l • proceediugs were part and parcel of. the- 
same litigation for which an attorney's fee is now sought. • , •.

• t . . . ,  a  i • * * i # ■ • •Moreover, the clear Congressional intention in enacting,.
-V i - V .  ! *  
- 1 *-T.'/dT in'107?. wan -to create an administrative and judicial schema
v  ,l v . - t  ■ ■ ' ; • • ■ • ,  V * ' ' '  • ■'for the redress of federal employment discrimination. Drown v. > ! '

■General Services Administration, s_uprâ , 4 4 11.!'.I..W. at.'4706’. ^Sec­
tions 717(b) and (e), 42 U.S.C. 52000e-16(b) and (c), establish- . 
complementary administrative and judicial enforcement mechanisms to? 
achieve the statutory purpose. M o m  at 4706. It is therefore not 

"^material whether the party seeking the award prevailed at the '-.-'' I 
administrative level or at the judicial level. Both are a part of 

' the same enforcement mechanism established by the statute.-. If he 
' is .represented bv an attorney at. either or both levels, a successful 
claimant is entitled to an attorney's fee to be awarded i« the • 
dis’eretion of the Court. ' ■ •

. In this particular case, plaintiff through administrative
proceedings was restored to the position he sought- retroactive' to 
September 8, 1968 and was awarded full back pay. Clearly h e -is theV* «"prevailing party" contemplated by the statute. The fact that this 
Court did not enter a permanent injunction against possible'future 
discrimination by.defendants hardly detracts from the substantial • 
victory von by plaintiff as a result of his persistent efforts to .... 
vindicate his rights. - .'..’V . ‘

J- V  . Nor is there any merit to defendants' contention that the ■ 
words "any*action or proceeding” in the statute mean only an action", 
or proceeding in court. The plain meaning of the language indicates 
quite to the'contrary. Had Congress wished to restrict an award of 
an. attorney's fee to only suits filed in court, there would have 
been no need to add the words "or proceeding" to "any ahtion." .But ■ 
"proceeding" is a broader term than "action” and would include an 
administrative as well as a judicial proceeding. Moreover,- use of 
the'words "under this subchapter" indicates the clear intention of :■ 

Congress to include the complementary administrative and judicial .;



enforcement proceedings provided for by §717(b) and (c) within .the 
coverage of Subsection (k). .

In Parker v. Matthews, ____ F.Supp. ____, 44 tJ.S.L.W. 2496"-'
(D.D.C. April 1, 1976), the Court hold that a party who entered into 
a settlement of her Title VII claim against the government was a •- 
"prevailing party" under 42 U.S.C. §2000e-5(k). In awarding an 
attorney's fee to the plaintiff, the Court said the following (page ; 
10 of Memorandum Opinion):

" in Smith v. Kleindienst, 8 F.E.P. 753 (D.D.C. • >'•
•v 1973), aCC’d sub. nom. Smith v. I.evi, No. 74-1939,
\ . . (D.C.Cir. Dec. 2, 1975); an award of attorneys' .

fees included both the amount of time spent by . ' •  'ij>. 
plaintiff’s attorneys on the administrative and • : ; •

?.•••*?' ■ the district court levels. In awarding a t t o r n e y s , . • , .
fees in Smith, supra, the Court, did not make a . •
distinction between the time spent during agency 
proceedings and the time spent in court. The j

- t issue on appeal was simply whether the fee was
excessive, the Court holding that it was not.. v _

.. .<T. Accordingly, this Court will not make a distinc- .• 4 ,
... tion between the time spent by plaintiff’s attor­

ney on the administrative and judicial levels.
'■ Plaintiff was forced to bring this action to the 

.• federal courts because of the agency's refusal to .
implement, the finding of discrimination. , More- 

. ' over, counsel’s representation before both the • ’
agency and this Court, has been in furtherance of s 

, > ' the policies behind the Civil Rights Acfi

* . in exercising its discretion under the statute, this Court
concludes that on the record here an attorney's fee should be awarded 
to the plaintiff. One of the primary concerns of Congress in enact­
ing Section 706(k) was the inability of low income minorities to 
bear the financial burden of attorneys' fees in vindicating their * , 
civil rights. li.S. Steel Corporation v. United States,.3S5 F.Supp. 
346j 348 CW.D.Penna. 1974). . ' .

Plaintiff's attorney has submitted an affidavit indicating 
■ that he has spent a total of 7.2 hours at both the judicial- and 
administrative levels. Although such attorney has not detailed the 
services rendered nor given a breakdown of his time, the extensile 
record here adequately supports this claim for a fee. 'Most of the 
attorney’s time was spent at fhe administrative level, in particular’, 
preparing for and participating in the two-day administrative



• "S '" ' ' ^ '•"-V- .wi'fT

hearing in July 1974 before the Hearing Examiner. Although the 
first and primary inquiry of a Court in determining the amount of 
an award of attorneys’ fees should be the time spent, other factors 
to be considered include the contingent nature of success, the •' 
complexity and novelty of the issues presented, the quality of the 
work and the amount of the recovery obtained. I.indy Bros. Builders, 
Inc, of Phila. v. American Radiator & Standard Hanitary Corp., 382 
F.Supp. 999, 1014, 1017 (E.D.Penna. 1974); I,indy Pros. Builders, i-
Inc, of Phila. v. American Radiator & Standard Sanitary Corp., 487.
F. 2d 161 (3d Cir. 1973) .

In applying these factors, this Court would note that a' 
small part of the time spent by plaintiff's attorney included his . 
unsuccessful efforts to secure the issuance of a'permanent injunc­
tion. Under all the circumstances of this case, this Cour-t concludes 
that a reasonable attorney's fee would amount to $3500.00.

For the reasons stated, it is this ̂ ^ L d a y  of June, 1976, 
by the United States District Court for the District of Maryland,

ORDERED:
1. That plaintiff's motion for summary judgment be 

and the same is hereby granted in part and denied in part;
2. That defendant's motion for summary judgment be ' 

and the same is hereby granted in part and denied in part; .
■ 3.. That judgment be and hereby is entered in favor

of plaintiff in the amount of $3500.00, as an award of arv. attorney' s 
fee to be paid to plaintiff's attorney;

4. That judgment be and hereby is entered in favor 
of defendants as to plaintiff's claim for a permanent injunction; and 
•V,. \>. 5. That costs be awarded plaintiff. • ,

1 ■

-9 -



IN TIIF. UNITED STATES DISTRICT COURT 
FOR THE DISTRICT OF MARYLAND

JAMES A. JOHNSON :
Flaintiff

v.
UNITED STATES OF AMERICA :
WILLIAM B. SAXBE, Attorney 
General of the United States :

UNITED STATES DEPARTMENT OF 
THE ARMY :

HOWARD H. CALLAWAY, Secretary 
of the United Stater. :
Department of the Army
UNITED STATES CIVIL SERVICE : 
COMMISSION
and ;
ROBERT E. HAMPTON, Chairman of 
the United States Civil „ :
Service Commission

Defendants

Civil No. H-74-1343 1

Kenneth L. Johnson, Baltimore, Maryland, for plaintiff.
Daniel M. Clements, Assistant United States Attorney, 
Baltimore, Maryland, for defendants.

MEMORANDUM .AND ORDER

Claiming discrimination in his employment because of his 
race, plaintiff has brought this action under Title VII of the ' 

Civil Rights Act of 1964. Named as defendants are various officials 
and agencies of the United States.

The controversy in suit has a lengthy history in this 
Court and before various federal administrative bodies. Plaintiff 
initially filed suit in this Court on July 5, 1972. Johnson v. 
Froohlke , Civil No. 72-677-H. Following a hearing in open court on 
January 4, 1973, the government's motion to dismiss the complaint 
was denied. Thereafter, the government moved to remand the case 
to the Civil Service Commission for a hearing and determination on 
the merits of plaintiff's claim that he was the victim of continuing



racial discrimination in his civilian employment by the United'’' 
States Army as an Illustrator. Finding that the plaintiff had,, 
never received a full administrative hearing or determination on 
the merits of his claim and that the United States Civil Service 
Commission was now willing to grant plaintiff a full hearing on 
the merits, this Court entered an Order on June 25, 1973, remanding 
.the case to the Commission for such a hearing and determination,- 
without prejudice to the right of the plaintiff to%refile an-action- 
in this Court if he were denied the relief he sought. •.»-. / '

A black male, plaintiff had been hired by the United .-, . ; 
States Army as an Illustrator at the Training Aids Center ("TAC"),- 
Fort Meade, Maryland, on August 1, 1961. In this and his earlier 
suit, plaintiff claims that he was refused promotion because of his 
race, and he also asserts various other claims of racial di’serimin-' 
ation at TAC. On July 2, 1968, a vacancy in the position of - , . . 
Supervisory Illustrator was announced. Two persons applied for -the 
job,' the plaintiff and a Mr. Anthon Allred, a white male. The.*-;' ■ 
Director of the TAC, Mr. William Culley, also white, selected \ 
Allred, and the latter assumed the. higher position on September 8, 
I960.' Allred resigned the position as of December 20, 1968, but 
the position was left open until plaintiff finally filled it in 
1975. < ; .

On August 31, 1970, plaintiff filed a formal complaint 
of discrimination, alleging that he was not selected for' the job 
because of his race. The Equal Employment Opportunity Officer at 
Fort Meade rejected the complaint as untimely. On February 3, 1972, 
plaintiff’filed another complaint alleging, inter alia, that he 
haid been subjected to a continuing pattern of discrimination which --. 
had prevented him from being promoted to the position of Supervisory 
-illustrator. On March 8, 1972, the EEO Officer rejected this- 
second complaint as alf;o being untimely. Flaintiff appealed the 
decision to the Board of Appeals and Review, but the decision was 
affirmed. Plaintiff's first suit in this Court followed. i

-• Pursuant to this Court's Order of June 25, 1973 in Civil
No. 72-677-H, the Civil Service Commission returned the case to the



Army for processing under Part 713 of the Commission regulations.
The complaint was investigated by a representative of the U. S. Army 
Civilian Appellate Review Office, and a report was submitted on ■ * 
April 1 7 , 1974. The investigator made the following recommendations:

A. That the complainant bo informed in writing ' 
that his allegation of discrimination in the 
matter of denial of promotion because of his race \
(black) is substantiated. '
B. That, the complainant bo promoted to.the posi- >,
tion of Supervisory Illustrator, C5-1010-09, in : _
accordance with the provisions of Civilian • •
Personnel Regulation 713.B-16d.
C. That the complainant be accorded full oppor- "
tunity to acquire training in the knowledge, skills' 
and experience required for more responsible posi- ...i.. 
t.ions, in keeping with the EEO Plan of Action ,
Command Objective relating to the.situation wherein 
supervisory positions reflect an imbalance by race 
and sex. . ■
D. That appropriate measures be taken to determine. -. • 
the extent of culpability of managers, supervisors. , 
and program officials in the discriminatory practices 
cited herein and corrective action be initiated 
accordingly.

On May 14, 1974, the Post Commander at Fort Meade issued 
his letter of decision, rejecting recommendations "A" and "B", 
approving recommendation "C" , and approving recommendation "D" with 
a modification which substituted the word "managerial * for the word
"discriminatory" in line three. Dissatisfied with this decision, 
plaintiff requested a hearing by an EEO Complaints Examiner. ..

.. ■ .*• A hearing was held on July 10 and 11, 1974 , at which 
plaintiff appeared with counsel and testified. Thereafter, the 
Examiner submitted his report and recommendation to the Army on 
October 12*. 1974. The Examiner recommended a finding of discrimina­
tion, .and, noting that since July 1, 1973 the Art Section had had .■••• 

sufficient employees to warrant the appointment of a supervisor, ^
further recommended that plaintiff be promoted to the position of 
Supervisory Illustrator retroactive to February 4, 1970, which was 
two years before plaintiff had filed his second complaint.., It was’ 
also recommended that the Director of the TAC be,required to attend 

•Van appropriate EEO course and that the Post Commander monitor 
personnel actions in the TAC so as to assure that all employees were



treated equally as to promotions, awards and training. .....
The Army approved the Examiner’s report and recommendation 

on November 15, 1974, and by letter of December 11, 1974, offered 
plaintiff his promotion retroactive to September 8, 1968, rather 
than merely to February 4, 1970, as the Examiner had suggested. •• 
However, plaintiff had meanwhile instituted this action on December >* 
9, 1974, seeking (1) promotion with back pay, (2) compensatory and . ; 
punitive damages*. (3) a declaratory judgment, (4) an injunction., 
against future employment discrimination, and (5) costs and attor— ...
ney's fees. .

Presently before the Court are cross-motions for summary 
judgment. Both sides have submitted memoranda of law, and the 
defendants have also filed the 459-page transcript of the adminis— ' 
trative hearing held in July 1974 and numerous documentary..exhibits 
which were considered by the various administrative officials. It 
has been agreed by the parties that the pending motions should be 
decided by the Court on the extensive record presently before it 
without the necessity of a hearing. The parties have further agreed •. 
that only two issues remain in this case, namely (1) whether 
plaintiff is entitled to an order enjoining defendants from future 
acts of discrimination and (2) whether plaintiff is entitled to 
recover a reasonable attorney’s fee and costs from defendants.

• • " I
. . ’ Injunctive Relief ,,

In his motion for summary' judgment, plaintiff asks this 
Court to '‘enjoin the Defendants from discriminating against the 

’Plaintiff because of his race (black) ; * * * •” Plaintiff contends-
' that because of what has happened in the past, he is entitled to
■ an 'injunction to prevent future racial discrimination against, him.
. •' . The record here does not "support plaintiff's .claim of

•■ ■ ■ .entitlement to a permanent injunction prohibiting future discrimin-- 
1 ' atory acts. On the contrary, the undisputed facts in this case show
' ' .  that no injunction should now issue. As a result of the various 

•administrative proceedings and action taken by the Army pursuant



I v • . •thereto, plaintiff has now gained everything he was seeking when he 
• '■ first asserted his claim against, the Army, lie has been promoted .

. to the position of Supervisory Illustrator; his promotion has.been • 
made retroactive to September 8, 1960, which was the first date the■" l

j position was filled; and he has been awarded full back pay including
| -V •’ •.appropriate yearly increases. In addition, the Director of the 
| '' Center where plaintiff works has been required to have further-equal:S
| employment opportunities training. Finally, the Army has undertaken
1 .. V to monitor personnel actions at the Center more closely to prevent
j future racial discrimination as to promotions, awards and training.;
i ' • v  • ■' .• ‘ Now that plaintiff is a Supervisory .Illustrator, any !
j J; .. claim of future discrimination against him must necessarily involve ' 

facts quite different from those which supported the showing ofi ..v . • . '
discrimination in the past. The record does not. indicate that .
there is any position open at this time to which plaintiff seeks to 
be promoted. No allegation to such effect is contained in the V
complaint, nor has plaintiff alleged that since he assumed his new - 
job he has been the subject, of any other kind of racial discrimina- ' 
tion. Should such discrimination occur at any time' in the future, , 

j , ‘ • plaintiff is of course free to file another action in this Court, »
j "after first undertaking his administrative remedies. ‘.. \

, For these reasons, this Court will not enter a permanent
j V-. *■!' injunction .against the defendants prohibiting future discriminatory ’ I < •' ;
i ’ • acts against plaintiff. When the discriminatory practice has been
: •' . . terminated and is not likely to recur, it is proper for a court to

. . deny injunctive relief. Williams v. Ceneral roods Corp. , 492 F.2d •:.
| •' M . ; :• • 399, 407 (7th Cir. 1974). ’ '

! ■ ; '■ ' it • "
! ' Costs and an Attorney's Fee

i " 1 •• This action was brought by’plaintiff under Title VII ofj '
j : the Civil Rights Act of 1964, 42 tf.S.C. §2000e et seq.' Until it

t ' • was amended by the Fqual Employment Opportunity Act of 1972, Title 
;/* .• j VII.provided no protection for federal employees. That enactment

added §717 to the 1964 Act, 42 U.S.C. §2000e-16, which proscribes ' v

-5-

TE S ffl



for the first time federal employment discrimination and establishes
an administrative and judicial enforcement system. See Crown v.
General Services Administration, 44 U.S.L.W. 4704 (U.S. June 1, 1976).

. . Section 70G(k) of the Act, 42 U.S.C. §2000b 5 (k), provides
' as .follows: • IT.-;

. '  * *• .  • * ♦* * / .  .  • . •> 
-  • . . V  v ? #

(k) In any action or proceeding under this sub­
chapter the court, in its discretion, may allow ,
the prevailing party, other than the Commission " -y 

. . or the United States, a reasonable attorney's '< ■ • ■
. fee as part of the costs, and the Commission • - J ' . .
. and the United States shall be liable for costs

the same as a private person. . . « •
' ”

In Alyeska Pipeline Service Co. v. Wilderness Society, 1 •• 
421'U.S. 240 (1975), the Supreme Court held that,there must be a '. 1 ' 
.specific statutory authorization for the award of an attorney's fee 
in a civil action brought in federal court. In view of the specific 
language of Subsection (k) quoted above (and defendants so concede), 
there is no longer any question' that a federal employee who prevails 
in a . Title VII action may in the discretion of the Court be allowed r-' i. 
costs and attorneys' fees to be paid by the United-States. The", 
defendants in this case argue that no such award should be made
here because plaintiff was not "the prevailing party" in thisliti-> ’gation and because the relief plaintiff secured was not obtained 
in an "action or proceeding" within the meaning of the statute:- 
This Court would disagree with both of these contentions and will* I / t-accordingly award plaintiff a reasonable attorney's fee. /
- In arguing that to recover his attorney's fee a party must
prevail in court rather than in administrative proceedings,

" defendants” overlook both the history of this litigation and the  ̂
Congressional intent in adding §717 to the Civil Rights Act of 1964. ' 
Plaintiff did originally sue in this Court for relief, and it was 
the Army which moved for a remand so,that the dispute could be . 
heard initially in administrative proceedings. Not completely 
satisfied with the relief afforded at the administrative level, 
plaintiff later re-instituted suit, which is now this pending action.

• Certainly, the fact that plaintiff had already filed suit in’this , '
- Court and had been expressly authorized to return here if dissatisfied



. ; . •; . . . .  ' .,'.,... .
‘:: •  - i':f:

with*.theaAoi.nictv«:t-.'ivV«-kt.ii»uit.̂  j,nd a marked effect on the Army s 
' ’ ' -acceptance-of the findings made by the" llcmrin^r-Examiner., Thu^ J!;?■ th£V_;- 
,.•*•••• administrative and -J ufl i c in l • proceedings were part and parcel of .the-- 

: \ • '• same .'litigation for which an attorney's fee ir. now nought. ■ ; >, ’
a . Moreover, the clear Congressional intention in enacting .

, , • ?*• ■ %. t . v V  - ... . • •r •t'a-C'' . ?''c71:7‘!in''1 0 7? wan to create an administrative and judicial schema ’ ’■ . ’
: v-'t"•>• ‘ •f • '-'for tho redress of federal employment discrimination. Brown v. ■ > " f - 

j, ’■■ General Services Administration, supra, -M U.IU..W. nt. • 47 06. :.Sec- .
tions 717 (b) and (e) , 42 U.S.C. S2000o-16(b) and (c), establish^ *,*•- }

. ■ comple’mentary administrative and judicial enforcement, mechanisms to: '.. .... . *.. ■
•, s-V'..r' v achieve, .the statutory purpose. 'Idem at 4706. It is therefore not •V..V * ■ * , ■ » ” * .• *■.

••v;',''. '"material whether the party seeking t he award prevailed at the ' | .
administrative level or at the judicial level. Both are- a part of 

/’the sams enforcement mechanism established by the statute.-. If he 
• ' is .represented bv an attorney at. either or both levels, a successful •

claimant is entitled to an attorney's fee to be awarded in the ■ 
discretion of the Court. ' '• >

' '**' In this particular ease, plaintiff through administrative
proceedings was restored to the position he sought’retroactive' to 

' September 8, 1968 and was awarded full back pay. Clearly he -is thev' i. "prevailing party" contemplated by the statute. The f.act that this 
' Court did not enter a permanent injunct ion against possible " future

discrimination by .defendants hardly detracts from the substantial ■ 1 1 
. victory won by plaintiff as a result of his persistent efforts to ...
. vindicate his rights. . .. ’V’ . ‘ '

v Nor is there any merit to .defendants' contention that the •
’words "any*action or proceeding" in the statute mean only an action,.- 

; ..V °r proceeding in court. The plain meaninq of the language.-indicates
quite to the contrary. Had Congress wished to restrict an award of ’- 

. . an attorney's fee to only suits filed in court, there would have
■ ~ '  ■: '■ been no need to add the words "or proceeding" to "any ab-.tion." . But •• 

i ’ i r "proceeding” is a broader term than "action" and would include an 
administrative as well as a judicial proceeding. Moreover,--use of 
-.the words "under this subchapter" indicates the clear intention of 
Congress to include the complementary administrative and judicial -

f

Ju’-’b .''

v ’.

, <
’ • *. t- 7 -



enforcement proceedings provided for by §717(b) and (c) within .the 
coverage of Subsection (k). .

in Parker v. Matthews, ' F.Supp. _j__ , 44 U.S.L.W. 2496*.'
(D.D.C. April 1, 1976), the Court held that a party who entered into 
a settlement of her Title VII claim against the government was a • 
"prevailing party" under 42 U.S.C. §2000e-5(k). In awarding ari 
attorney's fee to the plaintiff, the Court said the following (page 
10 of Memorandum Opinion): ' 'l; • ' •

In Smith v. Kleindienst, 8 F.E.P. 753 (D.D.C. -
■ i.-i- 1973), aCf' d sub. nom. Smith v. Levi, No. 74-1939, ' . . •
. (D.C.Cir. Dec. 2, 1975); an award of attorneys'

'• ’’ fees included both the amount of time spent by
plaintiff's attorneys on the administrative and • :

■ the district court levels. In awarding attorneys'v 1 •'
fees in Smith, supra, the Court did not make a V.; ■
distinction between the time spent during agency '* v 
proceedings and the time spent in court. The ... Y  . j

■ i issue on appeal was simply whether the fee was ••••’
'■ excessive, the Court holding that it was not. • v > . . .
■ ’ Accordingly, this Court will not make a distinc- ,

... tion between the time spent by plaintiff's attor­
ney on the administrative and judicial levels. • ' -i. ' '■
Plaintiff was forced to bring this action_to the

. federal courts because of the agency's refusal to .
v' ' ■ implement, the finding of discrimination. More- . ,t, over, counsel's representation before both the ■ ..

agency and this Court has been in furtherance of x 
. the policies behind the Civil Rights Act'.

• . in exercising its discretion under the statute, this Court
concludes that on the record here an attorney's fee sh.ould be awarded 
to the plaintiff. One of the primary concerns of Congress in enact­
ing Section 706(k) was the inability of low income minorities to ■ 
bear the financial burden of attorneys' fees in vindicating their • ,

S

civil rights. U.S. Steel Corporation v. United States,.385 F.Supp. 
346, 348 CW.D.Penna. 1974). '' .

Plaintiff's attorney has submitted an affidavit indicating 
that he has spent a total of 72 hours at both the judicial- and 
administrative levels. Although such attorney has not detailed the 
services rendered nor ejiven a breakdown of his time, the extensile 
record here adequately supports this claim for a fee. 'Most of the 
attorney's time was spent at fhe administrative level, in particular-., 
preparing for and participating in the two-day administrative



hearing in July 1974 before the Hearing Examiner. Although the  ̂
first and primary inquiry of a Court in determining the amount of 
an award of attorneys' fees should be the time spent, other factors 
to be considered include the contingent nature of success, the ” 
complexity and novelty of the issues presented, the quality of the 
work and the amount of the recovery obtained. I.indy Bros. Builders, 
Inc, of Phila. v. American Radiator & Standard Sanitary Corp., 382 
F.Supp. 999, 101.4, 1017 (E.D.Penna. 1974); I.indy Pros. Builders,
Inc, of Phila. v. American Radiator s Standard Sanitary Corp.,487.
F. 2d 161 (3d Cir. 1973).

In applying these factors, this Court would note that a ‘ 
small part of the time spent by plaintiff's attorney included his . 
unsuccessful efforts to secure the issuance of a'permanent injunc­
tion. Under all the circumstances of this case, this Cour-t concludes 
that a reasonable attorney's fee would amount to $3500.00.

For the reasons stated, it is this ̂ Il^_day of June, 1976, 
by .the United States District Court for the District of Maryland,

ORDERED:
1. That plaintiff's motion for summary judgment be 

and the same is hereby granted in part and denied in part;
• 2. That defendant's motion for summary^ judgment be

and the same is hereby granted in part and denied in part; .
3.. That judgment be and hereby is entered in favor 

of plaintiff in the amount of $3500.00, as an award of an., attorney' s 
fee to be paid to plaintiff's attorney;

4. That judgment be and hereby is entered in favor
of defendants as to plaintiff's claim for a permanent injunction; and

5. That costs be awarded plaintiff. .

1 ■

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