Brown v Dent Memorandum in Support of Plaintiffs Motion for Summary Judgment
Public Court Documents
June 8, 1976

56 pages
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Brief Collection, LDF Court Filings. Brown v Dent Memorandum in Support of Plaintiffs Motion for Summary Judgment, 1976. 20ae19ee-b69a-ee11-be36-6045bdeb8873. LDF Archives, Thurgood Marshall Institute. https://ldfrecollection.org/archives/archives-search/archives-item/8f14a5b2-4c78-41e0-85f1-28d185f5770d/brown-v-dent-memorandum-in-support-of-plaintiffs-motion-for-summary-judgment. Accessed July 16, 2025.
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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 ■ -9 -