Johnson v. Alexander Petition for Writ of Certiorari to the US Court of Appeals for the Fourth Circuit

    Docket No.

In the Supreme Court of the United States
October Term, 1982

J E S S E  J. JOHNSON 
Petitioner

vs

CLIFFORD ALEXANDER, JR., 
in his official capacity as Secretary of the Army;

The United States Department of the Army, 
and his agents, assigns and successors in office.

Respondents

PETITION FOR WRIT OF CERTIORARI 
TO THE UNITED STATES COURT OF APPEALS FOR 

THE FOURTH CIRCUIT

J E S S E  J. JOHNSON  
41 Cornelius Drive 
Hampton, VA 23666 
804-838-1244

PETITIONER, PRO SE



QUESTIONS PRESENTED

1. W h e th er  Norfolk federal D i s ­

trict Court Judge Richard 8 . K e 1 1 am who 

displays upon the wall of his chamber in 

a federal tax su ppo rt ed b ui ldi ng  a p i c ­

ture of Robert E. Lee with cross c o n f e d ­

erate flags of the C on fe d er a t e States of 

America which fought a war to protect 

"...the institution of s l a v e ry . . . " and 

"for ... the  right to property in Negro 

slaves..." su bje ct ed  petit io ner , a 

Black citizen and an involunta ri ly  

retired federal gove rnm en t e m plo ye e from 

Fort Eust i s , Virginia to Inherent v i o ­

lations of due process under the 5 th 

amendment to the U. S. C on s t itu ti on  and 

to Inherent violations of due process and 

unequal pr o te c ti on  under the 1 3 th, ]hth 

and 15th am endments of the U. S. C o n s t i ­

tution wher ein  he denied peti ti one r p r o ­

motion to Education Spec ial ist  GS 1710- 

12 and denied injunctive relief.



(Petitioner does not remember seeing a

picture of the U. S. flag in the judge's 

chamber

2. Whether appointing U. S.

Federal District Judge Richard B.

Kellam who displays unlawfully the pic­

ture of Robert E. Lee on cross confede­

rate flags in his chamber in a federal 

tax-supported building in the District 

Court, Norfolk Division, in Virginia is 

one of the reasons petitioner was denied 

promotion to Education Specialist GS 

1710-12 and whether this subjected 

petitioner to inherent violations of due 

process under the 5th and 14th U. S. 

constitutional amendments and to inher­

ently unequal protection under the 15th, 

14th and 15th amendments of the U. S. 

Constitution.

3. Whether not appointing any 

Black federal District judges since 

1789 and/or more impartial white judges

iii



by U. S. Senators in Virginia has sub­

jected the Black petitioner to continu­

ing, systematic, intentional race 

discrimination for 13 years; denied 

promotions, transfers, human dignity and 

injunctive relief for 13 years and sub­

jected petitioner to inherent violations 

of due process under the 5th and 14th 

amendments of the U. S. Constitution and 

to unequal protection under the 13th, 

14th and 15th amendments to the TJ. S. 

Constitution.

4. Whether the continuous denial 

of injunctive relief by the District 

Court, Eastern District of Virginia, 

by the Civil Service Commission, by the 

Equal Employment Opportunity Commission 

and by the Secretary of the Army, his 

agents and assigns to prevent continuous 

intentional, systematic race discrimi­

nation daily for 13 years against the 

Black petitioner, subjected him to

iv



inherent violations of due process under 

the 5th and 14th amendments and inherent­

ly unequal protection under the 13th and 

14th amendments of the U. S. Constitu­

tion and whether this denial was one of 

the reasons petitioner was not promoted 

to Education Specialist GS 1710-12, nor. 

to Equal Employment Opportunity Officer 

GS 160-1? in 1976.

5. Whether the Federal District 

Court, Eastern District of Virginia, 

Norfolk Division, or the Fourth Circuit 

Court should require the Secretary of 

the Army to promote petitioner to 

Education Specialist GS 1710-12 or to 

Equal Employment Opportunity Officer,

GS 160-12 or equivalent, under authority

of Shaw.vs Library of Congress without a

formal finding of race discrimination 

(F Supp 479, 945-950, US DC, DC) or by 

such authority as exists by law.

6. Whether the court below

v



denied petitioner due process of law and 

denied equal protection guaranteed by 

the U, S, Constitution wnen it decided 

that petitioner failed to establisn a 

prima facie case of racial discrimi­

nation against petitioner in violation 

of Title VII, 42 U.S.C. 2000e et seq, 

conforming to the standard of McDonald 

Douglas v. Green.

7. Whether the District Court made 

reversible error in accepting a surprise, 

undocumented, rigged allegation, before 

administrative exhaustion, of petitio­

ner's alleged napping in office by hos­

tile discriminating witnesses to deny 

petitioner's promotion to Education 

Specialist GS 1710-12 in violation of 

petitioner's rights under due process, 

equal protection under the 5th and 14th 

amendments of the U. 3. Constitution.

No witness had ever made such a verbal 

nor written allegation against petitio­



ner in 13 years, as required by the 

Army's own regulations. (CFR USC 5 Sect 

7501 et Seq). (Fort Eustis Regulations 

TCFE 690-1 Chap 7, Sect IX and X.) NOTE*. 

By the term inherent, petitioner means 

that due to his Black race, he inherited 

before, at, and since birth certain 

constitutional inequalities as a badge 

of slavery and that this inheritance has 

helped to deny petitioner equality of 

opportunity in promotions, injunctive 

relief, human dignity and inequality in 

all phases of life.

8, Whether petitioner who was 

forced to involuntarily retire in July 

I960 from federal employment due to 

extreme, continuous, systematic, intent­

ional and near-violent race discrimina­

tion at Fort Eustis, Virginia can now 

amend his original complaint of February 

1980 to include paragraph 21 again so as 

to revive the allegation of compensatory

vii



and punitive damages, back pay, and pro­

motion under USC 42 Section 1981 and 

1982 without being barred by Brown v, 

General Service Administration (425 US 

820 (1976) which decided exclusive juris­

diction of Title VII for federal employ­

ees. Petitioner is now in the private 

sector.

9. Whether Judge Kellam's opinion 

and order in this case, due to bias and 

prejudice, so parallels the many 

deliberate mistatements of facts, dis­

tortions, and clear reversible abuses 

of discretion, etc., by the same court 

in 1972-76 so much so that it proves a 

racially biased and prejudiced pattern 

by the federal District Court, Norfolk 

Division, Intentionally and continually 

engaging In practices, and abuses in the 

administration of Civil justice that 

deprives petitioner of his rights under 

the 5th, 15th, 14th and 15th amendments

viii



of the U.S. Constitution thereby contin­

ually and intentionally denying petitio­

ner injunctive relief, promotions, due 

process, and equal protection which 

resulted in the destruction of 

petitioner's career and emotional health 

and tranquility.

ix



LIST OF ALL PARTIES

1. JESSE J. JOHNSON, Petitioner

2. CLIFFORD ALEXANDER, JR . , As 

Secretary of the Army, the 

U.S. Department of the Army, 

and his agents, assigns and 

successors in office, Respondent

x



TABLE OF CONTENTS

Page

Questions Presented for Review ... M

List of All P a r t i e s ...................... x

Table of Contents . . . . . . . . .  xi

Table of Author iti es . . . . . . .  xiii

Opinions De livered Below . . . . .  1

Statement of J ur is d i c t i o n  . . . . .  1

Constitutional Provisions, Statutes, 

and Regulations Involved . . . . 2

Statement of the Case . ... . . . .  5

Reasons for Al low an c e of Writ Are 

Identical to Questions Presented

for Review. . ...........................22

C ON CLU SIO N .....................   ,63

APPEND i X

& 1
Append ix  A : Extens ion of T i me A
of the Supreme Court, Clerks 
Letter, Approved.

Ap pen dix  B : Extension of Time, A2
Order, Supreme Court Chief Justice 
Warren E. Berger.

Appendi x C: Fourth Circuit Court
Order; Dismissing Complaint. A3



App e nd i x D : Fourth Circuit Court
Order; Re hearing Denied.

App e nd i x E: Expert Witness,
Mrs. Freda C. Clark, Affidavit. A 6

Ap pen dix  F: Extract of Appeal of
Appellant to Fourth Circuit 1976 
Trial {77-1656) for Comparison 
with 1980 Decision to Show a 
Pattern with the Past. A*+0

App e nd i x G: Copy of Motion for
Rehearing to Fourth Circuit Court 
Order of 1976 Trial (77-1656) for 
Comparison with 1980 Decision to 
Show a Pattern with the Past. A50

Ap pe ndi x H: D e f e n d a n t’s Request
for Res che du le of Hearing to 2 
December 80 Approved. Abus

Ap pe ndi x 1: Letter re; De fendant's
Motion for Extension of Time (dated 
23 October 1980) . AoOb

Ap pe ndi x J: Hearing Reset on
October 31, 1980 by Defendant's
Request. A60c

Appen dix  K : Hear ing  Reset on
December 2, I 3 8 0 to A c c o m m o d a t e  
Honeymoon of De fendant's Attorney

Ap pe ndi x L: Opinion and Order
(District Court 18 Decemb er 1 980) ^62

x i I



TABLE OF AUTHORITIES

Alexander Gardner v Denver (415 US at3F7-4BT4973FTT974)-----—

Brown v Board of Education of Topeka 
Kansas (99 L, Ea. Oct-1954 term U.S'. 
5¥8^12r9, 1083)

Brown v GSA 425 U.S. 820 1976.

Day v Matther 530 F 2d 1083 (DC Cir.
m e ) —

Dean Rene Peters v C. P. Kiff 407 US 493 
3 T T e T l u r ^ 3 7 ~ 9 ?  s . l t r n F T ( f i o  71- 5078)

Finch v Wallberg Dredging Co (1955) 76 
T3aEo 2 4 ^ T ? S I ~ f r T r t 5 F f T H A L R  2d Ct. 
1150

Francis Haines v Otto J. Kench et al 404 
W ~ 5 i r ,  5ITT?d 2T~6‘=T27T2"''S7"C t . 9 6 3

Furnco Construction Corporation v Waters 
m  u.sT'"5679S7*;,'^l7"f5'T3' 1 1 9 7 8 ) ~ -----

Gibson v Mississippi 162 US 565, 591

Hill v Western Electric Co.» Inc. 596 F 
?T~99, 104 (4th Cir. 1979)

International Brotherhood of Teamsters v 
United States 4 3 1 U S  324. 35$ 9? S. C t .
T843 1866 (1977)

John Punch8s Case in Virginia (July 1640)
TTuHTcXal.Casesconcerning American
Slavery. H. T. Catteral)

Johnson v. Hampton 452 F Supp 1 (1977) 
X W t T T i o n e r’1̂ ~Personnel Case, 1977)

xi i i



Joseph L„ Jones et al v Alfred H. Mayer 
Co. et al 88 S. Ct. 2186 392 US 409; 20
Led 2d 1189, 1968

McDonald Douglas Corp. v Green 411 US
1WTWT51 — ....

Shaw v Library of Congress (P Supp 479. 
950, USLC, DC 1980j

Slaughter House Cases, 16 Wall. 36 
"(1873) ~

Steele v Louisville and Nashville Rail­
road" Co . "323 US 192, 198-193— --------

Strauder v West Yirginia 100 US. 300. 
307-368 (18791 “
US Supreme Court Reports 14 L ed 2d (381
iUS~T3TJ~TL^ vn~~HoItvT~Tirginia)

US Supreme Court Reports 40 3 US 212,
29' 'L ed 403, 91 S. Ct. 1778 (R. Johnson 
v. Mississippi)

US Supreme Court Reports 30 L ed 708.
T2 S. Ct." 639, 404 US 553 (L. Little v 
North Carolina)

US v Scivto 101 S. Ct. 568

US Fansansico v Legal Aid Society of 
San Diego Inc. c7r~^iTr~3F3'::Tl?a I3?4-

Virginia v Rines, 100 US 313, 318 (1879) 
E  Parte, Virginia 100, US 339, 344-345 
(1879) 25 L ed 676 (1880)

Williamson v Bethlehem Steel Corp. 468 F 
T a n j U T T ^ n d  Cir) 411 US “9 IT (1973)

x i v



OPINIONS BELOW

The opinion of the Court of Appeals 

for the Fourth Circuit affirmed the 

judgement below on the reasoning of the 

District Court for the Eastern District 

of Virginia, Norfolk Division, on 

April 20, 1982 (App, C), The District 

Court decision is App. L. Petition for 

rehearing denied on May 28, 1982 (App.

D).

JURISDICTION

The opinion of the Court of Appeals 

for the Fourth Circuit was decided on 

April 20, 1982 (App, C). Rehearing was 

denied on 28 May 1982 (App. D ) . Petitio­

ner was granted a 30-day extension of 

time by the Supreme Court of the U. S. 

(App. A and B). This timely petition 

was filed on 24 September 1982. Juris­

diction of the court; USC.28 Section

1254. Final decision of district 

courts.

1



CONSTITUTIONAL PROVISIONS INVOLVED;
UNITED STATES CONSTITUTION, 

AMENDMENT FIVE;

l...No person shall be deprived of life, 

liberty, or property, without due pro­

cess of law; ...nor without just compen­

sation.

2. U. S. Constitution, thirteenth:

Neither slavery nor involuntary 
servitude, except as a punishment 
for crime whereof the party shall 
have been duly convicted, shall 
exist within the United States, or 
any place subject to their juris­
diction.

3. U. S. Constitution fourteen, Section 
1:

All persons born or naturalized in 
the United States, and subject to 
the jurisdiction thereof, are citi­
zens of the United States and of 
the State wherein they reside. No 
state shall make or enforce any law 
which shall abridge the privileges 
or immunities of citizens of the 
United States; nor shall any State 
deprive any person of life, liberty, 
or property, without due process of 
law; nor deny to any person within 
its jurisdiction the equal protec­
tion of the laws.

4. U. S. Constitution, fifteen, Section 
1:

2



The right of a citizen of the 
United States to vote shall not 
be denied or abridged by the United 
States or by any State on account 
of race, color, or previous 
condition of Servitude.

STATUTES
Civil Rights Act of 1964, as amended, 
by the Equal Employment Opportunity Act 
of 1972, 42 US Set 2Q00e et seq. (Title 
VII, Section 706, and 717 Injunctive 
Relief)

5 CFR Administrative Procedures Act

5 CFR Grievance Procedures, Section 5701 
e t seq

28 USC, Section 144

28 USC Mandamus Act, Sect. 1361

28 USC Tucker Act 1346

29 CFR, Uniform Guidelines of Employee 
Selection Procedures (1978), Section
1607

42 USC, US Civil Rights Act of 1866,
Section 1981

EXECUTIVE ORDERS

Executive Orders 11246, 11478, and 11590 

REGULATIONS

Federal Personnel Manual, Chapter 335 
(Promotion Regulations)

3



Code of Fed, Regulation 713, Equal 
Employment Opportunity Regulations (Army)

Fort Eustis Civilian Personnel Regula­
tions TCFE 690-1 Chapter 7, Section IX 
and X

MISCELLANEOUS

CORPUS JURIS SECUNDUM Vol 48A, p 728, 
Section 108

American Law Reports annotated 48 ALR at 
1166

A Study of Judicial Review in Virginia 
1789-1928 by M. V, Nelson, Ph.D. 1947, 
Columbia University Press

H, R, Reports, No, 9 2-238 92d Congress 
1st Session at 24 (1971)

S, Report No, 1-15, 92nd Congress 1st 
Session at 5, (1971)

A History of Virginia Conventions by 
TT~lTr~Wenam'an. “ chapter ~on~De bates 
1901-02, pp. 91 ff. pp 117-30? (J. L. 
Hill Press, Richmond, VA 1902)

Judicial Cases Concerning American 
sTave'rym'"anH‘~ t H F ~ ^ ^ o , Carnegie Insti­
tute, Washington, D. C. 1926-27 by H. T. 
Catteral

Judicial performance in the Fifth Cir­
cuit 7 'f7 ~1 ale ~!L~aTv^'ournaI )0 (196T3T.

Judicature, the Journal of American 
Judicature Society (May 1979, vol. 62 
No. 10) The Senate and the Selection of 
Federal Judges (AriTclel ’ ‘ ‘

4



STATEMENT OF THE CASE

1. The petitioner seeks review of 

a decision of April 20, 1982, by the 

United States Court of Appeals for the 

Fourth Circuit„ Richmond, Virginia.

This decision affirmed the judgement be­

low of 18 December 1980 by the United 

States District Court for the Eastern 

District of Virginia, Norfolk Division. 

(App, i)

2. A timely petition for rehearing 

was filed on 3 May 1982. Denied on 28 

May 1982. (App. D)

3. This court has jurisdiction to 

review the judgement of the Court of 

Appeals by writ of certiorari under 28 

use Sect. 1254.

4. The jurisdiction of the District 

Court was invoked under Title VII of the 

Act of Congress known as "The Civil 

Rights Act of 1964” as amended by the

5



"Equal Employment Opportunity Act of 

1972," 42 U3C, Section 2000e et Seq, 

Section 706 and 717 of said Title VII 

providing for injunctive declaratory and 

other relief against racial discrimina­

tion in federal employment due to race; 

and Title 42 USC, Sect. 1981 and 1982.

It is also, under the fifth, the 

thirteenth and fourteenth and fifteenth 

amendments to the U.S. Constitution: 

Executive Order #11590 and as alleged in 

pro se complaint of 28 February 1980, 

including the Back Pay Act, and 

Administrative Procedures Act.

5. Petitioner applied for promo­

tion to GS-12.About 10 years preceding 

his applications for promotion, at Port 

Eustis, Virginia, to GS-12, petitioner 

had been employed at Port Eustis, 

Virginia as Education Specialist GS 

1710-09 and 11 in vacancy #500-76, with 

discriminatory exceptions. His duties

6



were centered on writing correspondence 

courses for home study by military ser­

vice persons. Petitioner had also 

distinguished himself as a publisher of 

6 books (12 editions). He had taught 

GCC camp boys in the education field in 

Michigan about 3 years; served nearly 

four years with military research in the 

Army; nearly 12 years in part-time 

legally related duties in the Army; 

three years as Assistant Professor of 

Military Science and Tactics at ROTO, 

Virginia State College, Petersburg, VA, 

and nearly three years with ROTC at 

Hampton Institute, VA where he retired 

in October 1962, and worked at Hampton 

Institute as a civilian nearly 5 years.

In addition, petitioner had been 

invited to speak to 1000 West Point 

cadets; testified before a Presidential 

Congressional Defense Manpower Commiss­

ion in Washington, D. 0. about four

7



times; spoke at educational institutions 

and later at the Array War College, 

Recently he has been filmed in a mili­

tary documentary for national television. 

All the above was because of petitioner's 

books or military history. In addition, 

he had earned an AB degree, a MA degree 

in Education and an LLB degree in law by 

extension (correspondence) study for 3 

years, while in the Army; a series of 

short military and civilian courses; and 

nearly 12 years Reserve Officers corre­

spondence courses. He entered the Army 

as a private in October 1942 and retired 

as a lieutenant Colonel in October 1962 

(20 years) as one of less than 40 Black 

retired lieutenant Colonels as of 1962 

in all U. S. history.

Petitioner had a total of 30 years

job-related training and experiences

prior to application for promotion to

GS-12 as a writer. Mr. Van Deren,„who* 8%

8



was promoted, had 1£ years with Civil 

Service, without any military experien­

ces or job-related writing experiences. 

He was hired from a civilian education 

job. (See petitioner's personnel file 

as Agreed exhibit #1 in tne record. 

CIVIL SERVICE COMMISSION'S 

PROGRAM IMPEDED E^UAL EMPLOYMENT 

OPPORTUNITY; CONGRESS SAID;

PETITIONER SUFFERED

6. The Civil Service Commission 

Equal Employment Opportunity practices, 

customs, and usages were "woefully 

inadequate," Congress said, between the 

1890s and about January 1979, at which 

time EEO responsibilities were trans­

ferred to the Equal Employment Opportun­

ity Commission (EEOC). Petitioner was 

denied relief under the CSC»f inadequate 

policies between February 1966 and 

January 1979. The House Committee on 

Education and Labor reported, among

9



7/i. Whereas the central issue in 

this federal action is unconstitutional, 

intentional and systematic denial of 

promotion to Education Specialist GS 

1710-12 in about January 1977 in vacancy 

300-76 at Fort Eustis, Virginia due to 

race, violations of due process and 

equal protection, the promotion issue is 

inextricably interwoven, inseparably and 

unmistakably linked to unconstitutional 

past, continuing, systematic, intention­

al race discrimination, denial of injunc­

tive relief and denial of promotions by 

the Norfolk federal District Court, the 

Fourth Circuit Court, the Secretary of 

the Army, the Civil Service Commission, 

and the Equal Employment Opportunity 

Commission, and the Equal Employment 

Opportunity Commission for 13 years; and 

due to the denial or restriction of 

Black citizens from the general politi­

cal life of Virginia, the appointment of

1#



Conservative federal judges by the presi­

dent of the United States, with the ad­

vice and consent of conservative sena­

tors from Virginia. The word, conserva­

tive, in this action, means that Black 

citizens and many white citizens9 rights 

interests, sentiments, and views have 

not been and are not represented in the 

state-controlled voting procedures which 

selects federal judges. It is said that 

Virginia has the second lowest percen­

tage of registered voters in the United 

States (Census Reports 1970, 1980).

.8 . Defendants were found guilty of 

race discrimination in November 1972.

As a result, he was reinstated from 

discriminatory RIF GS-07 to GS-11 and 

separation of nearly four years. How­

ever, defendants continued with increased 

retaliatory race discrimination on the 

first date of reinstatement and contin­

ued to date of forced retirement in



July 1980.

9 v, Petitioner was forced to com­

plain every month in 1973 to Mr. Oben 

Johnson, Equal Employment Opportunity 

Officer, without relief; so, in January 

and February 1974 he was forced to 

reinstate the race discrimination com­

plaint of 1972 due to contractual vio­

lations of agreement of January 1973 

and continuing race discrimination which 

lasted until forced to involuntarily 

retire in July 1980. No person in 

authority would stop the daily discrimi­

nation to forced retirement in July 80.

REASONS FOR GRANTING THE WRIT

I. ARGUMENT FOR QUESTION #1

1, WHETHER FEDERAL DISTRICT COURT JUDGE

RICHARD B. KELLAM WHO DISPLAYS UPON THE

WALL OF*HIS CHAMBER A PICTURE OF ROBERT

E. LEE WITH CROSS CONFEDERATE FLAGS OF

THE CONFEDERATE STATES OF AMERICA WHICH 

FOUGHT TO PROTECT "...THE INSTITUTION

12



OF SLAVERY u AND "FOR...THE RIGHT TO

PROPERTY IN NEGRO SLAVES..." SUBJECTED 

PETITIONER, A BLACK EMPLOYEE WHO 

INVOLUNTARILY RETIRED, TO INHERENT 

VIOLATIONS OF DUE PROCESS, EQUAL PROTEC­

TION AND JUSTICE UNDER THE 5th, 13th, 

14th and 15th AMENDMENTS TO THE U. S. 

CONSTITUTION WHEREIN PETITIONER WAS 

DENIED PROMOTION TO GS-12 AND DENIED 

INJUNCTIVE RELIEF.

(Brown v. Board of Education of Topeka, 

Kansas) (99 Law Ed. Oct 1954 term. U.S. 

348-31-9, 1083) separate but equal'1... 

educational facilities are "inherently 

unequal." Petitioner inherited certain 

judicial inequalities due to the badge 

of slavery.

2. In 1896, the Supreme Court stated... 

"...the constitution of the United 

States... forbids, so far as Civil and 

political rights are concerned, discri­

mination by tne General Government or

13



by the state, against citizens because

of race. (Gibson v Miss. 162 US 565, 

591. Steels v Louisville and Nashville 

Railroad Co., 323 US 192 198-199.) 

Petitioner has suffered the Army’s and 

CSC’s permissiveness and discrimination 

for 13 years.

3. All racial discrimination is prohi­

bited under the 13th amendment of the 

U.S. Constitution (Joseph L. Jones et 

al v. Alfred H. Mayer Col, et al, 392 

US 409, 20 L. Ed. 2d, 1189, 1968) (88 

S.C. 2186).

4. A flag is and has been for cenxuries 

a symbol of a source of inspiration; an 

inner expression of our feelings, atti­

tudes, cultural ideals, and our prefer­

ential symbol for our national person- 

ality. The confederate symbol of 

slavery is void, unlawful and has no 

place under the national constitution 

and national personality nor in the



hearts or courts of the state or federal

governments.

5. The Certiorari should be granted 

because the Court below had decided a 

question relating to the promotion of a 

Black federal employee in a way in which 

it conflicts with applicable decisions 

of this court in the midst of continuing 

bias and prejudice of the court below 

and of the Army.

6. The Supreme Court stated that dis­

cretion must be exercised in lignt of 

the large objective of Civil Rights Act 

(Hecht v. Bowles 321, US 321 331 (1944) 

(Albermarle Paper v Moody 422 US 405,

416 (1975).

7. Race discrimination...for several 

hundred years reaches into the past, the 

present and the future.

8. In addition, the District Court, 

Eastern District of Virginia, Norfolk 

Division, has intentionally, and system­

15



atically engaged in, and is continuing 

to engage in practices in the admini­

stration of Civil .justice that deprives 

petitioner of his rights under the 5th. 

13th, 14th, and 15th amendments of the 

U.S. Constitution, thereby continually 

denying petitioner promotions, injunc­

tive relief, due process, equal protec­

tion, equal employment opportunity and 

human dignity.

9. This case goes beyond the limited 

issue of promotion to Education Special­

ist GS 1710-12 to certain inextricably 

interwoven inherent rights of the peti­

tioner as alleged in the pro se com­

plaint of February 80, It also involves 

the inextricably interwoven questions 

whether a District Court with a judge 

who displays the confederate symbol of 

slavery and which has never had a Black 

judge or perhaps racially impartial 

white judges, and the Army have continu­

16



ally, systematically and intentionally 

subjected petitioner to inherent viola­

tions of due process, inherently unequal 

protection and unequal justice in viola­

tion of the 5th, 13th, 14th and 15th 

amendment clauses of the U. S. Constitu­

tion, Executive Orders, laws, and 

regulations of the Army,

10. The display of Robert E. Lee's pic­

ture with cross confederate flags by 

Judge Richard B. Kellam on the wall of 

his chamber unlawfully in the federal 

District Court, tax-supported building, 

Eastern District of Virginia, Norfolk 

Division, is irrefutable evidence per se 

to this Black petitioner and to any 

impartial judge that he is personally 

biased and prejudiced toward petitioner 

and the Black race in this case of 

competition for promotion to GS-12 

between a white and Black male for the 

same Civil Service position at Fort

17



Eustis, VA,

Judge Kellam's selection, as federal

district judge, was unconstitutional;

therefore petitioner has not had a

constitutional trial.

"Perhaps nowhere is the importance 
of judicial review better illu­
strated than in the testing of 
the very constitution itself.
The (Virginia) Convention of 
1901-02, after prolonged debate, 
decided to proclaim the consti­
tution rather than submit it to 
the vote of the people for rati­
fication. This was a doubtful 
policy and a break with tradition. 
Every constitution since that of 
1776 had been voted upon by the 
people. But the Convention did 
not dare to submit for ratifi­
cation by the old electorate a 
constitution which disfranchised 
part of it." (See: A History of
Virginia Conventions by J.
Brenamah. (J.iH.ii Press,
Richmond /YtyQYJ pg. 91 ft. 
chapter on debates. 1901-02, 
pp. 117-307)

xxxx

"The primary objective in calling 
the Convention of 1902 was to 
eliminate the Negro from politics 
by imposing stringent suffrage 
qualifications."

xxxx



(A Study of Judicial Review in Virginia 

1789-1928. By M. V. Kelson, Ph.I). 1949 

Columbia University Press) Petitioner 

has been denied his constitutional 

rights as a citizen and as a federal 

government employee for many years.

xxxx

"We may conclude by saying tnat 
tne suffrage provisions of tne 
Constitution of 1902 have 
resulted in eliminating the 
negro. The Convention did the 
State a great service when it 
removed the negro from politics 
and tnus rendered tne. purifi­
cation of the electorate possible.' 
(The Virginia Constitutional Con- 
ve n't!o n o f' 19 Ol -1902 by Ral pn C . 
McDaniel, Ph.D., University of 
Richmond, Johns Hopkins Univer­
sity Studies of Historical and 
Political Science.)

(All State imposed discrimination 

against the Negro race is unconstitu­

tional denial of equal protection under 

the 14th amendment of the U. S. Consti­

tution (Slaughter House cases, 16 Wall. 

36 (1873) (Strauder v. West Virginia,

100 US 300, 307-308 (1879) Virginia v.

'19



Rives 100 OS 313, 318 (1879); Ex parte, 

Virginia, 100 US 339, 344-345 (1879) 

are inherently, inseparable.

11. The Confederate symbol of slavery 

means to the petitioner and to any 

impartial judge that petitioner should 

be in a demeaned status, segregated, 

humiliated; and without political rights, 

human dignity, employment rights in tax- 

supported jobs; denied due process, 

equal protection or equal justice; and 

denied injunctive relief against contin­

uing, systematic, intentional race 

discrimination or be a slave.

12. The Confederate symbol of slavery

speaks louder than words to this peti­

tioner. As if spoken in court, it means 

also to the petitioner: "nigger,” "coon"

"boy," "girl," "sambo," "uncle," "auntie" 

"reverend," "preacher," and other de­

meaning, humiliating terms historically 

applied to petitioner and Black citizens.

-20



The symbol is not one of love or respect.

13. The Confederate symbol of slavery 

is equivalent to a German Swastika flag 

in a court for a Jewish or French peti­

tioner; or a U.S. flag in a confederate 

court during the Civil War, or to 

England's flag in court in the U. S. 

after Independence.

14. In addition to the confederate 

symbol of slavery, Judge Kellam's 

indifferent demeanor, stern attitude, 

unfriendly disposition toward petitioner 

indifference about equal employment 

opportunity; and his extreme friendli­

ness and partiality toward all the white 

defendants, attorneys and witnesses;

and obstruction of justices, is further 

evidence of personal bias and prejudice 

toward petitioner in addition to clear 

abuses of discretion during pre-trial 

and trial due to race of petitioner.

ax



15, Moreover, the court granted defend­

ants* attorneys two motions to extend 

time from November 6, 1980 to December 2, 

1980 to allow attorney, Pexer Lowenberg, 

time to go on his honeymoon, (App. H>

I, J, and K . ) and from October 17, 1980 

to October 31, 1980 to reply to petitio­

ner's motion to compile answers, to pro­

duce documents and for further admission; 

however he denied petitioner all motions 

for continuance for time to seek and 

orient another attorney or to dismiss 

the case without prejudice or cost to 

either party. There was no urgent or 

compelling reason to deny petitioner's 

motions, except race, bias and preju­

dice. This is clear abuse of discretion, 

bias and prejudice.

16. The judge's bias and prejudiced 

decision deliberately and intentionally 

diluted petitioner's trial transcript 

to help defendant. He ignored the prima

„22



facie evidence of race discrimination 

presented in spite of his biased 

restrictions obstruction of justice and 

clear abuse of discretion. His opinion 

and order is saturated with bias and 

prejudice.

17. The American Heritage Dictionary of 

the English Language (1976) defines pre­

judice as "preconceived preference of 

idea: bias...hatred of a particular

group,, race, or religion."

18* B l a c k s  Law Dictionary defines bias 

as: "condition of mind...a judge unable

to exercise his functions impartially in 

a particular case." (Evans v Superior 

Court in and for Los Angeles County,

10? Cal. App 372, 290 p. 662, 665.

Maddox v State 32, Ga 587, 79 Am. Dec. 

307; Pierson v State app. 558) to 

incline to one side. (Yarborough v 

Mallory 225 Ala. 579» 144, So, 447,

448)

23



19. Prejudice in Black Law Dictionary

is defined as: "Porejudgement, bias,

preconceived opinion. A leaning towards 

one side of a cause for some reason 

other than conviction of its justice. 

(Tegeler v State of Oklahoma 130 p. 1164, 

1167, 9 Oklahoma Cir. 138.) laylor v

P . W, Woolworth Co. 146, Kan 841, 73 2d 

110 2, 1103."

20. The following is what the confede- 

rate symbol of slavery unlawfully dis­

played in a federal building in a 

judge's chambers means officially:

Quoting from the Confederate State of 

America's (CSA) constitution:

a. Article I, Section 8 of the

CSA of America advocated: "...no bill

of attainder, expost facto law; or law 

denying or imparing the right to proper­

ty in negro slaves shall be passed."

b. Article III, Section 2 of the

CSA constitution advocates: "no slave...

2*+



held in service or labor in any state or 

territory of the confederate states... 

shall be discharged from such service or 

labor..."

c. Further; "In all such terri­

tory , the institution of Hegro slavery, 

as it now exists in the confederate 

states, shall be recognized and protec­

ted by Congress and by territorial 

government..."

21. Petitioner did not mention tne 

confederate symbol of slavery at pre­

trial or during trial because of fear of 

additional retaliation or charge of con­

tempt; or of extreme hostility during 

trial; because the confederate sentiment 

is very strong in Virginia and at Fort 

Eustis, Virginia as shewn by the number 

of confederate flags on cars, etc., and 

as shown in the Virginia's state legis­

lature and U . S. senator's extreme 

resistance toward the 1982 extension of

25



the Voting Rights Act. Petitioner sin­

cerely hoped for miraculous justice.

22. In addition, petitioner’s original 

attorney, the U. S. Assistance Attorney, 

the Army’s Attorney, the court reporter, 

the vast majority of the District Court’s 

officials and administrative staff are 

all of the white race; so to whom could

a pro se Black plaintiff complain about
j

the confederate symbol of slavery and 

bias and prejudice of the judge? No 

one. Can such a federal court ever dis­

pense impartial justice to a Black com­

plainant?

23, However, petitioner mentioned the 

confederate symbol on appeal to the 

Fourth Circuit; inferred in transcript 

and complaint. Denied. Trial in 

District Court was held on December 2, 

1980; it was a year later before peti­

tioner became aware of right to dis­

qualify judges under both USC 28,

26



Section 144 and of the recently enacted

Judicial Councils Reform and Judicial

Conduct and Disability Act of 19809 

effective by Congress in October 1981.

(Public Law 94-458, S. 1873).

24. Petitioner^ fear of being 

charged with contempt or of extreme 

hostility by Judge Kallam was well 

foundedi in a Virginia case, an attor­

ney L. W. Holt was charged with.con­

tempt for filing a motion that the judge 

was biased and asked a change in venue; 

the case went through state courts to 

the U. S. Supreme Court:

a. U. S. Supreme Court 
Reports 14 L ed 2d (381 
US 131)
h. W. Holt et a l ., Peti­
tioners , v Commonwealth 
of Virginia. 38I US 131» 
T T I T e d T a " 2 9 0 ,  85 S Ct.
1375 (No. 464)
Argued April 27 and 28,
1965. Decided May 17,
1965.

SUMMARY

"In contempt proceedings instituted

•27



by a judge of the Circuit Court; 
of the City of Hopewell, Virginia, 
against an attorney who had 
represented some of the defendants 
in a libel suit, the attorney filed 
a motion requesting the trial judge 
to disqualify himself from trying 
the contempt case, and after denial 
of this motion, filed a motion for 
change of venue, alleging in both 
motions bias on the part of the 
ju&geT AnoTher attorney repre^ 
senting the first attorney in the 
contempt proceeding read this 
motion to the judge as part of 
his argument urging a change of 
venue. Both attorneys were 
adjudged guilty of contempt of 
court, and each was fined $50.
Their convictions were affirmed 
by the Virginia Supreme Courc of 
Appeals. (205 Va 352, 136 SE2d 
809. )

xxxx

On certiorari, the Supreme Court 
of the United States reversed.

b. Another Case; U.S. Court 
Reports

(403 US 212)
ROBERT JOHNSON, Petitioner, 

v
STATE OF MISSISSIPPI 

403 US 212, 29 L Ed 2d 423, 91 
S Ct 1778 
(No. 5485)

Argued April 21, 1971. Decided 
June 7, 1971.

SUMMARY

"The petitioner, a civil rights

28



worker, was charged with com­
mitting an act of criminal 
contempt in the Circuit Court 
of Grenada County, Mississippi, 
and the judge thereof ordered 
his removal from the court.
The petitioner was ordered to 
appear at a later date to 
show cause why he should not 
be held in contempt, but 
before that hearing was held, 
the petitioner filed (1) a 
motion in the state court
a s H c i n ^ .recuse
himself and charging the judge 
with personaT_~pre3uaicT~agaTnst 
the petitioner, the civil rights 
organization that he represen­
ted, and the lawyers9 organi­
zation defending him, and (2) 
a petition in a federal Dis­
trict Court for removal of the 
contempt proceedings.

XX XX
On appeal, the Supreme Court of 
Mississippi affirmed the judge­
ment of contempt but reduced 
the petitioner's sentence from 
4 months to 1 month. (233 So 
2d 116.)

xxxx
On certiorari, tne United States 
Supreme Court reversed and 
remanded. (U. S. Supreme Court 
Reports) 403 US 212, 29 L Ed. 
423. 91 S Ct 1778)

c. Larry Little*s case relates 
to petitioner's case:

89



(404) US 553)
IN THE MATTER OP LARRY LITTLE, 

Petitioner
404 US 553, 30 L Ed 2d 708, 92 

S Ct 659 
(No. 71-244)

January 24, 1972

SUMMARY

In a District Court in Fayette 
County, North Carolina, the 
petitioner was tried for 
carrying a concealed weapon. 
Prior to trial, the petitioner
moved for a continuance because
Eli attorneyr had another trial
engagement 3Ln a different city,

motion and' proceeded with the 
trial, and the petitioner acted 
as his own attorney. In his 
summation following the close 
of the evidence, the petitioner 
stated that the court was biased 
and had prejudged the case, and 
that the petitioner was a politi­
cal prisoner. As a result of 
these statements, the trial 
judge held the petitioner in 
contempt and sentenced him to 30 
days in jail as summary punish­
ment. A North Carolina Superior 
Court denied the petitioner's 
request for habeas corpus, and 
the North Carolina Court of 
Appeals and the North Carolina 
Supreme Court denied review by 
certiorari.

On certiorari, the United States 
Supreme Court reversed. (US 
Supreme Court Reports 30 L Ed

30



708, 92 S Gt 659, 404 US 553)

d . Virginia has historically 
mainTaine'd",two sta'nAard's“~oT"^
3usTice*~Tor~^Ta .wKTte
men. fhe John Punch, case of 
1640 illustrates Virginia's 
double standard:

RE Negro John Punch, July 1640, 
"Whereas Hugh Gwyn hath... 
Brought back from Maryland 
three servants formerly run 
away...the court doth there­
fore order that the said 
three servants shall receive 
the punishment of whipping 
and to have thirty stripes 
apiece one called Victor, a 
dutchman, the other a Scotch­
man called James Gregory, 
shall first serve out their 
times with their master 
according to their indentures, 
and one whole year apiece 
after the time of their ser­
vice is E x p i r e d . a n d  after 
that service...to serve the 
colony for three whole years 
apiece, and that the third 
being a negro named John 
Punch shall serve his said 
master or his"assigns f o r " 
lhe~"'t i¥e~oT~nl s.natural"'""

"Judicial erases Concerning 
~ Am e r 1 c an T l'ave ry and the 
W€Wo~. "UafnegTe Inst. r 
"STash. f>. C. 1926-27 By H. T. 
Catteral. Petitioner has 
reason to believe that if he 
were white, he would nave 
been promoted to GS-12 on

3 i



on the same evidence.

e, "It appears, then, that in 
failing to invoke (USC 28)
Section 144 (Bias and prejudice) 
Negroes and Civil Rights Liti­
gants have neglected a potenti­
ally useful instrument for 
coping with hostile judges in 
Southern District Courts (see 
generally, NOTE: Judicial
Performance in the~~Fl7tK 
Circuit". 73 Yale Law Journal 
90 (1963)."

25. Petitioner had a right to a trial 

by an unbiased judge;

a. "The right to a judge free 

from bias or prejudice is based 

on due process clause of the 

federal constitution." (US v 

Scivto, 101 S Ct 568) "and on 

the constitutional right to a 

fair trial." (US v Scivto 101 

St Ct 568) (CORPUS JURIS 

SECUNDUM Vol 48A, pp. 728, 

Section 108 1981 edition).

b. "Generally speaking, with

respect to grounds for dis­

qualification, a litigant is

32



entitled to a trial before a judge 

who is not biased or prejudiced." 

US--Fransansico v Legal Aid Society 

of San Diego, Inc CA Gal 563-F 2d, 

1324). "It has also been stated... 

that the belief on the part of 

litigant that he cannot have a fair 

trial is sufficient grounds for dis­

qualification. .. (of a judge)."

(State ex rel. Agrivaris v Chappell. 

App. 344 So 2d, 925) (See also Mead 

Corp. v Adams Extract Co. 101 S. Ct 

244 and US v Grinnell Corp. R. I.

86 S Ct 1698).

26. A few details are essential to 

completely understand why Judge Kellam 

was biased and prejudiced in denying 

petitioner continuances or dismissal. 

Petitioner was recovering from an 

operation of September 1980. Judge 

Kellam and the defendant's attorneys 

were personal witnesses to the fact

33



that petitioner’s original attorney 

should nave voluntarily withdrawn on 19 

November 1980 at pre-trial conference in 

chamber or not have accepted the case 

because he told petitioner and the judge, 

for the first time, that it was ethical­

ly improper for him to have accepted 

petitioner’s case because he stated that 

he is an active Reserve Lieutenant Colo­

nel in the Army’s Judge Advocate Gener­

a l’s Corps (Lawyers) and cannot 

"represent a civil litigant... in a pri­

vate action against the Secretary of the 

Army." (See pg 4 pre-trial transcript 

dtd 19 November 1980) (See also:

Virginia State Bar Formal Opinion #182; 

ABA Formal Opinion #342) Petitioner 

asked him verbally to withdraw volun­

tarily, He refused to withdraw volun­

tarily , but withdrew based on the formal 

request of the petitioner. Petitioner 

was then, by surprise, pro se, because

3*+



the judge denied petitioner's motions 

for continuance to find and orient 

another attorney. There was no compell­

ing reason for the judge to deny the 

motions, except Black race of petitioner. 

The court had already granted the defen- 

dant's attorney Peter iowenberg two 

continuancies from November 20, 1980 to 

December 2, 1980 to accommodate the 

attorney Lowenberg's honeymoon, and from 

October 17, I960 to October 31, 1980 so 

that defendant could reply to Demands 

for Documents, Admissions, etc., 

requested by petitioner. (App. H, I,

J, and K)

2?. Judge Kellam's denial of continuance 

was traumatic because in the same court, 

petitioner had been required to wait 

four years from September 1972 to October 

1976 for trial when it was to the advan­

tage of the same court to await a 

Supreme Court decision against him.

35



(Brown v GSA 425 US, 820, 1976) (Title 

VII exclusive Jurisdiction) When to 

petitioner's advantage, motions for con­

tinuances were denied by the same court. 

(App. F and G)

28. Petitioner asked Judge Kellam at 

pre-trial whether he could appeal his 

denials of motions as an interlocatory 

motion. In substance the answer was 

"No, not at this time." (See pre-trial 

Tr pp 4 and 5)

29. Petitioner wanted a change in venue, 

but being pro se, the procedure and 

right to change venue was not and is not 

now clear to petitioner.

50. Therefore petitioner had been 

defending himself, pro se, beginning 

with the pro se filing of the Complaint 

of February 1980 due to the ethically 

improper issue of his original attorney 

who accepted the case after it was filed 

pro se. Between February 1980 and

36



November 19, 1980, petitioner's original 

attorney had refused to prepare petitio­

ner's case, leaving all research, writ­

ing, etc., to petitioner. He could not 

answer questions asked by Judge Kellam. 

The case was scheduled for 2 December 

1980.
31. Being fully aware of these facts, 

the defendants* attorneys and Judge 

Kellam subjected this pro se petitioner 

to a more stringent standard than he 

applied to the defendant's attorneys 

for continuances, and his original 

attorney for preparation. This is 

unconstitutional because standards for 

pro se petitioners should be less 

stringent. Supreme Court decision; 

(Francis Haines v Otto J. Kerner, former 

governor of Illinois et al. 404 US 519; 

30 L Ed 2d 652, 92 S Ct. 594 reh. den. 

405. US 948, 30 L Ed 2d 819, 92 S Ct 

963) Decided January 13, 1972. The

37



Supreme Court reversed the Seventh Cir­

cuit in this pro se case.

32. American Law Reports. Annotated. 

48 ALR at 1166 states in favor of 

petitioner:

Withdrawal of plaintiff’s counsel^

In Finch v Wallberg Dredging Co. 
(1955) 76 Idaho 246, 281 F2d 136,
48 ALR2d 1150, it appeared that 
plaintiffs' attorneys, having 
represented plaintiffs for some 
time, voluntarily withdrew three 
days before the date sex for the 
trial of a complicated case; that 
plaintiffs thereupon immediately
engaged anotKer~'attorney.to
represent them, but, because of 
other immediately urgent matters, 
as well as the complexity of the 
case, this latter attorney was 
unable to familiarize himself with 
the facts and the law of the case 
in the short interval of time 
before the trial date...the trial 
court summarily denied plaintiffs' 
motion for continuance and... 
since he had not been able to 
prepare for the trial in the 
short time allocated, the court 
again denied continuance...The 
reviewing court held that under 
the circumstances the trial court 
should in the exercise of its 
discretion have granted plain­
tiffs' motion for a continuance, 
and cited in support of its 
holding a number of Oregon cases.,.

38



II. ARGUMENT FOR QUESTION #2

1. WHETHER APPOINTING U . S. FEDERAL 

DISTRICT JUDGE, RICHARD B. KELLAM, WHO 

DISPLAYS THE CONFEDERATE SYMBOL OF 

SLAVERY ON THE WALL OF HIS CHAMBER, IS 

ONE OF THE REASONS PETITIONER WAS DENIED 

PROMOTION TO GS-12, AND WAS SUBJECTED 

TO INHERENT VIOLATIONS OF DUE PROCESS 

UNDER THE 5th AND 14th AMENDMENTS AND 

INHERENTLY UNEQUAL PROTECTION UNDER THE 

14th AND 15th AMENDMENTS OF THE U. S. 

CONSTITUTION.

a. Judge Richard B. Kellam was 

politically selected to he fede­

ral District Court judge in 

about August/September 1967.

He was recommended by senators 

from Virginia. Petitioner was 

hired at Port Eustis in July 1967.

b. Black citizens, including 

petitioner, have been subjected 

historically to inherent violations

39



of due process, unequal protec­

tion and unequal justice. For 

example, Virginia's constitution 

of 1902 was unconstitutionally 

proclaimed at the Constitutional 

Convention of 1901-02, "rather 

than submit it to the vote of 

the people for ratification 

(Debates 1901-02 pp 117-307; 3100. 

3260 See J. N. Brenaman. A 

History of Virginia Conventions 

(J. L. Hill, Richmond 1902)

(pp 91)

c. "The primary objective in 

calling the convention of 1902 

was to eliminate the Negro from 

politics by imposing stringent 

suffrage qualifications." (A 

Study of Judicial Review in 

Virginia 1789-1928 by M. V .

Nelson Ph.D. Columbia University 

Press, 1947).

kO



d. Since 1902, and earlier,

Black citizens have been denied 

or restricted the right to vote 

to help select more impartial 

senators who could, in turn. 

select more impartial judges 

who*d disperse more impartial 

Justice in federal courts in 

Virginia for Black and white 

people.

e. The close relationship 

between politics and selecting 

Judges and denial of promotion 

of petitioner can be seen more 

clearly in the authentic 

Article by Mr. Larry Berkson 

in Judicature, the Journal of 

American Judicature Society 

(May 1979* Vol 62, No 10, which 

follows:

"The Senate and the Selection of Federal

Judges



"Members of the Constitutional 
Convention of 1789» after consid­
erable discussion, decided that 
the President should appoint 
judges with the advice and con­
sent of the Senate."

"He (the President) shall have 
Power, by and with the Advice 
and consent of the Senate, to... 
appoint...Judges of the Supreme 
Court, and all other Officers of 
the United States, whose appoint­
ments are not herein otherwise 
provided for...but the Congress 
may by Law vest the appointment 
of such inferior Officers, as 
they think proper, in the presi­
dent alone, in the Courts of Law, 
or in the Heads of Departments."

"Prom the very beginning, however, 
U. S. senators have played a 
dominant role in the process.

xxxx
"Out of these political realities 
grew the custom of "senatorial 
courtesy."

xxxx
"fhe practice originated during 
the first Congress. George 
Washington nominated Benjamin 
Pishbourn to a post in the Port 
of Savannah and, although he 
had excellent qualifications, 
the Senate rejected the nomi­
nation as a courtesy to the 
two Georgia senators who favored 
a different individual."

xxxx

1+2



"Until the past few decades 
all that a senator had to 
do to ensure the defeat of 
a presidential nominee (to 
a post within his state] 
was to declare that the 
nominee was "personally 
obnoxious" or offensive to 
him. "

NOTE: A U. §. Senator from

Virginia influenced not appointing the 

first Black federal judge in Virginia 

by President J. Carter in 1979/1980.

III. ARGUMENT FOR QUESTION # 3 

1. WHETHER NOT APPOINTING ANY BLACK 

FEDERAL DISTRICT JUDGES OR MORE IMPAR­

TIAL WHITE JUDGES IN VIRGINIA SINCE 1789 

DUE TO RACIALLY DISCRIMINATORY DENIALS 

OR RESTRICTIONS IN THE POLITICAL 

PARTICIPATION OP BLACKS IN VIRGINIA’S

STATE GOVERNMENT SUBJECTED PETITIONER 

TO INHERENT DENIAL OF PROMOTIONS, E^UAL 

OPPORTUNITIES, DUE PROCESS, AND EQUAL 

PROTECTION UNDER THE 5th, 13th, 14th and 

15th AMENDMENTS OF THE U. S. CONSTITU­

TION.

*+3



a. No Black judges have ever been 

appointed by the U. S. president with 

the advice and consent of the U. S. 

senators from Virginia due to slavery, 

segregation and unconstitutional denial 

or restriction of Black people from 

voting, from petit and grand jury duties 

and from general political participation 

in the state government of Virginia dur­

ing the entire history of Virginia, 

including the colonial era,* this is 

inherently unequal, 'this is one of the 

reasons petitioner has not been promoted 

to GS-12 or higher for 13 years. Black 

people were first brought to the English- 

speaking colonies in 1619 at Jamestown, 

Virginia. (Brown v Board of Education 

of Topeka, Kan US 348, 349 at 1083)

2. A white male, Bean Rene Peters, com­

plained that he had suffered unconstitu­

tional discrimination because Black per­

sons had been systematically excluded



from the grand jury that indicted nim 

and the petit jury that convicted him. 

Similarly, petitioner is discriminatori- 

ly not fully represented in the Federal 

District Court, Eastern District of 

Virginia by race nor sentiment nor by 

impartial Black or white judges, nor by 

subordinate officials; therefore, petit­

ioner has been subjected to inherently 

unequal judicial and constitutional pro­

tection for several centuries. Black 

clerks, administrative workers, etc. 

with Norfolk federal court are a shame­

ful token, although thousands of Blacks 

have been locally qualified for many 

years.

a. (407 US 493)

DEAN RENE PEiERS, PETITIONER, 

v

0. P. KIFF, Warden 

407 US 493, 33 L Ed 2d 83, 92 S Ct 

2163 (No. 71-5078)



Argued February 2 2, 1972. Decided 
June 22, 1972.

SUMMARY

A state prisoner, whose burglary 
conviction was affirmed by the 
Georgia Court of Appeals (115 
Ga App 7^3), instituted habeas 
corpus proceedings in the United 
States District Court for the 
Middle District of Georgia, 
alleging for the first time that 
Negroes had been s ystematically 
excluded from the grand jury 
that had indicted him and from 
the petit jury that had c o n v i c ­
ted him. The District Court 
deni ed the petition, and the 
United States Court of Appeals 
for the Fifth Circuit affirmed 
on the ground that because the 
prisoner was not himself a 
Negro, he had not suffered any 
unconstitutional disc r i m i n a t i o n  
and thus his conviction must 
stand {hh) F2d 370). The 
Supreme Court reve rsed and 
r e m a n d e d .

3. S i m i1 a r 1y in three landmark trilogy 

of cases regarding exclusion of Black 

citizens from grand and petit juries, 

the Supreme Court held generally that 

convictions by such juries is denial of 

constitutional equal protection, and



that injunctive relief is available "to 

vindicate these i n t e r es t s . . .11 Pe t i t i o ne r 

is similarly situated. (407 US 500)

See also Strauder v West Virginia, 100,

US 303, 308-309, 25 L Ed 604, 665, 666 

(1880); Virginia v Rives, 100 US 313, 25 

L Ed 667 (i860); and Ex parte Virginia, 

100 US 339, 25 L Ed 676 (1880). Many 

other courts in the U. S. have made 

favorable decisions on the issue of 

excluding Black citizens from juries. 

Petitioner should have as much protection 

due process and justice as a person who 

comm its crime.

iV. ARGUMENT FOR QUESTION #k 

1. WHETHER THE CONTINUOUS DENIAL OF 

INJUNCTIVE RELIEF BY THE EASTERN DISTRICT 

OF VIRGINIA, BY THE CIVIL SERVICE C O M ­

MISSION AND BY THE SECRETARY OF THE ARMY, 

HIS AGENTS AND ASSIGNS SUBJECTED P E T I T I O ­

NER TO 13 YEARS CONTINUOUS, SYSTEMATIC, 

AND INTENTIONAL RACIAL DISCRIMINATION



AND INHERENT VIOLATIONS OF DUE PROCESS, 

AND EQUAL PRO T E C T I O N  UNDER THE 5th AND 

14th AMENDMENTS TO THE U. S. CONSTITUTION 

AND HELPED TO DENY PETITIONER PROMOTIONS 

AND TRANSFERS. (App. F and G)

a. Pet i t i one r has been continually, 

intentionally and s y s t e m a t i c a l l y  deni ed 

injunctive relief from continuous, 

intentional s y s tematic race d i s c r i m i ­

nation by the Army, Civil Service C o m m i s ­

sion, the Equal Employment Commission and 

by the Federal District Court, Eastern 

District of Virginia between July 1967 

and July 1982. (App. F and G)

b. No person in authority would 

take command or firm action to stop the 

race discrimination. Although 3 court 

cases were filed and an array of EEO 

complaints were filed, no relief was 

ordered. Petitioner was forced to 

involuntarily retire in July 1980 due to 

excessive discrimination. The Army, the

!+8



CSC, the EEOC are the defendants, the 

investigator, the judge, the jury, and 

decision makers In EEO complaints. 

Petitioner suffered because^i n part^ e v i ­

dence gathering, investigative procedures 

in EEO complaints are unconstitutional i n 

that the complainant has no right to d i s ­

covery or access to investigative file, 

or confro n t a t i o n  prior to final decision 

based on incomplete, distorted, u n d o c u ­

mented, omitted statements. Hearing 

decisions a re a sham. Continuing race 

d i scrimination is not fully recognized 

by the Army, CSC, or EEOC. These 

deficiencies were noted in Alexander 

Gardner v Denver Company. (2* 1 5 US at 36,

48- 2*9 , 5 6  ̂ 197^), Cox v U. S. Gypum (2*09 

F 2nd 289, 7th Cir 1369). Boudeaux v 

Baton Rouge Mine Construction Co. (2*37 F 

nd 1011 (5th Cir 1971) and Ettinger v 

Johnson (518 F nd, 62*8) (3rd Cir 1 975). 

Petitioner suffered.

■1+9



c . The Army and the Court also 

unconst i tut i onally denied peti tioner pro- 

mot ion to Equal Employment Opportunity 

Officer GS 301-12 twice, although Best 

Q u a l i f i e d , according to an expert witness, 

Mr. Earl Woods, for vacancies #73-257 in 

December 1 973 and vacancy in

February 197^ at Fort Monroe, Virginia 

and denied peti tioner injunctive relief 

against continuing, systematic, and 

intentional race discrimination. (See 

App. F and G) Un i ted A i r Lines v 

Evans and Trial Brief of Appeal and 

Petition for Rehearing En Banc with the 

Fourth Circuit. (CA #7 7“16 56 ; CA #98-72 

N N ) and (CA 7 5 “̂ 5NN) for summari zed 

violations only.

V. ARGUMENT FOR Q U ESTION #5

1. WHETHER THE FEDERAL D !S T R !CT COURT 

EASTERN DISTRICT OF VIRGINIA, NORFOLK 

DIVISION OR THE FOURTH CIRCUIT SHOULD 

REQUIRE THE SECRETARY OF THE ARMY TO

50



PROMOTE PET ITS ONER TO EDUCATION

SPECIALIST GS 1710-12 OR EQUIVALENT 

UNDER AUTHORITY OF SHAW v LIBRARY OF 

CONGRESS WITHOUT A FORMAL FINDING OF RACE 

D I S C R I MINATION (F Supp A?9» 9 ̂ 5 - 9 50 , USDC 

D C ). The Shaw case authorizes settlement 

without a formal finding of race d i s c r i ­

mination, including back pay.

a. “The public policy favoring 

amicable settlement of all disputes to 

reduce tens ion between the parties and to 

reduce the w o rkload of court operations 

with maximum force and effects in the con 

text of employment discrimi nation.

(United States A l 1e g h e n y - L u d 1 urn indus­

tries , inc. (517 F 2d, 826, 8A9-850 (5th 

Cir. 1975)

b. An official Army Equal E m p l o y ­

ment Opportunity i nves t i gat i on finding 

of race disc r i m i n a t i o n  by defendants 

against petitioner, dated November 3,

1972 , cone 1udes as f o 11o w s :

51



c. "The record reveals, however, 

that he (Jesse J. Johnson) was treated 

differently as a course writer GS-9 and 

based on the subleties s u rrounding his

s e p a r a t i o n ...the investigator concludes 

that these actions were racially m o t i ­

vated." Defendant continued race 

discrimi n a t i o n  from the first date of 

reinstatement to date of involuntary 

retirement in July 19 8 0 .

d . As in Shaw v Library of C o n ­

gress , the Fort Eustis promotion process 

and performance appraisals had not been 

v a 1 S dated and this caused adverse 

impact upon petitioner as a Black 

employee. Petitioner had been subjected 

to continuous disparate treatment as a 

Black employee for 10 to 13 years. The 

pretext of defendants at reconstruction, 

validation and correcting violations of 

the Army's own regulation was a rigged 

sham by defendants' witnesses who were

52



not qualified to make their s tatements 

or were either found guilty of race 

d iscrimination or were pending inve s t i ­

gation, later found to be u n d o c u m e n t e d .

e. In a d d i t i o n , the Army has 

autho r i ty to promote pet i t i oner to GS-12 

due to the many violations of the Army's 

own regulations under non-racial a u t h o r ­

ity in personnel regulation FPM 771.1 

and 772, Grievance procedure (Code of 

Federal Reg. US C 5 , Sect. 7501 et seq) 

and Fort Eustis Regulation TCFE 690- 1 , 

Chapter 7, Section IX, and X dated 

28 May 1975 due to numerous violations 

of the Army's own regulations, which was 

cause, in part, for denial of petitioner's 

promotion. (See Expert Witness, Mrs. 

Clark's, affidavit App. E)

VI. ARGUMENT FOR QUESTION #6 

1. The opinions and order of the 1980 

(and 1976) court below have decided a 

question relating to promotion of a

53



Black federal employee in a way in which
it ©©nfliets with
a p p licable decisions of this court in the 

midst of bias and prejudice of the court 

and the Army. (App. F and G)

2. Under the McDonald Douglas C o r p o r a ­

tion v. Green Standard (All US 792 802,

e 9 3$. Ct. 1817, 182 4 ( 1 97 3) , pet I t i one r 

proved that he belongs to the Black 

racial minority (age 62 at the time of 

application); that he applied and was 

Best Qualified with j o b - r e l a t e d  civilian 

and military training, experience, 

education and background; that despite 

being "Best Q u a l i f i e d’1 he was d i s c r i m i ­

nator! 1y underrated by the promotion 

panel and rejected; for the person p r o ­

moted, ratings were Inflated* p e t i t i o n e r’s 

were diluted due to race.

3. The position remained open and was 

filled by a young white male, Mr.

Richard Van Deren, age about 35 at the 

time of application, who was less q u a l i ­



fied by job-re l a t e d  training, experience, 

and background than petitioner; and but 

for the promotion panel 1s insertion of 

another qualifying 171 into his promotion 

file during the panel's deliberations and 

the unlawful raising of his ratings by 

H r . B. B . Thornton, the Civilian P e r s o n - 

nel Officers (CPO), and the many Army 

violations of its own p romo t i on reg u l a ­

tions due to race, petitioner would have 

been rated "Best Qualified" and p r o m o t e d . 

(Expert Witness, Mrs. Clark's affidavit 

App. E) (Tr. 187-243) (Expert Witness,

Dr. Carrington, Tr. 129—177) 

h. Defendants and the court deliberately 

neglected to emphasize that the primary 

duty of the position is to w r ite c o r r e s ­

pondence courses for home study so as to 

try to justify inflating Mr. Van Deren's 

ratings. Petitioner had 20 years Army 

service, 10 years Civil Service Course

55



writing experience in the position 

300-76 to be filled; about 12 years 

personal study of c o r r e s p o n d e n c e  study of 

reserve officers home study courses; six 

books, 1k editions, published about 

military history, used worldwide; and 

other q u a l ifications, as stated in the 

Statement of the C a s e , prior to a p p l i c a ­

tion. Mr. Van Deren had 1i years Civil 

Se rv i ce experience, no military e x p e r i ­

ence, and no course writing experience. 

Rating his civilian background based 

primarily on his one quarter of ISP 

training in college was a p re text and 

was used to "screen out" petitioner 

unlawfully (App. E, Expert Witness).

This same type denial of due process and 

equal protection, denial of Trial De Novo 

etc, occur red in the 1976 court action 

for p romot i o n . ( A p p . F and G )

5. The burden shifted to defendants to 

try to "articulate (or prove) some

$6



legitimate reason for the employee's

rejection." McDonald Douglas C o r p o r a ­

tion v. Green 411 US, 792 , 80 2 i 93 S .

Ct. 1817, 1824 (1973), Furn Co C o n s t r u c ­

tion Corporation v . Waters, 438 US 5 6 7 ,

98 S. Ct. 2943 (1978). General i zed 

opinion regarding qualif i c a t i o n  of 

petitioner is insufficient to rehut a 

prime facie case (Gano v . Department of 

Development 16 FEP p 438, 443 (S D , Ohio 

1977), especially by hostile d i s c r i m i ­

nating witnesses who never evaluated 

petitioner's writing. Rigged statements. 

6. The defendant fa iled miserably and 

dismally to articulate or prove its 

burden and efforts to do so were a sham. 

For example, defendants used Mrs. E. 

Throckmorton as an "expert" whose 

experiences, background, etc. were d i s ­

torted and inflated. (App. E) She made 

statements without documentation. She 

said that Mr. Van Deren's late 171 was

57



an error of the Civilian Personnel 

officer; however, Mrs, E. Sims and Miss 

Hubbard, on the CPO staff, deny that they 

gave the panel his 171 (Agreed E x h . 5,

Sub Exh 0 and P ). She said that the so- 

called r e construction based on Exhibits 

D-7, D-8, D-9 and D — 10 was correct or 

harmless w i thout any proof. Fu r thermo r e , 

these exhibits had been denied petitioner 

during discovery and were i ntroduced by 

surprise over petitioner's o b j e c t i o n s . 

These we re accepted by the court and used 

as a partial basis for the court's biased 

and prejudiced opinion and o r d e r .

7• The defendant 1s attorney used a 1 1 

retaliatory, hos t i1e wi tnesses who had 

been found guilty of race d i s c r i mination 

against petitioner or who were found to 

have made undocumen ted statements or 

misrepres e n t a t i o n s  to aid and abet 

discriminating officials in the past and

who had been promoted. H_ ____

58



p e t i t i o n e r ' s  a t t o r n e y  wh© was d e n i e d  1 

.time t© r e a # . &  ©rtent himself #n  the ease,

VII. A RGUMENT FOR QUESTION #7

1. WHETHER THE DISTRICT COURT MADE 

REVERSIBLE ERROR IN ACCEPTING A SURPRISE 

UNDOCUMENTED RIGGED ALL E G A T I O N  ABOUT 

NAPPING IN THE OFFICE BEFORE A D M I N I ­

STRATIVE EXHAUSTION, BY HOSTILE D I S C R I ­

MINATING WITNESSES TO DENY PETITIONER 

PROMOTION TO EDUCATION SPECIALIST GS 

1710-12 IN VIOLATION OF PETITIONER'S 

RIGHTS UNDER DUE PROCESS, AND EQUAL 

PROTECTION UNDER THE 5th, 13th, and 14th 

AMENDMENTS OF THE U. S. CONSTITUTION.

2. Defendants attempt to carry Its b u r ­

den of proof to try to " a rticulate some 

legitimate excuse, non discrimi n a t o r y  

reason" for petitioner's denial of 

promotion under McDonald D o u g 1 as vs Green 

standard was unconstitutional and legally 

a dismal failure. Defendants post trial

59



Brief is written to cloud the record and

issue, u n d o c u m e n t e d , distorted; and 

based on hearsay, assumptions fabricated 

mi s r e p r e s e n t a t i o n s ,  retaliation, surprise 

subterfuge and hostile witnesses' s t a t e ­

ments who were found guilty of race 

discrimination. The courts opinion and 

order was based primarily on the similar 

violations as the post trial Brief.

3. Defendants' hostile witnesses were 

Hr. B. B. Thornton, Civilian Personnel 

Officer, Mrs. C. L. Cox, Senior Writer, 

Mr. Oben Johnson, former EEO officer,

Fort Eustis, VA, Mrs. F. Perry, fellow 

writer, and LTC A. Hannum, supervisor 

and Mrs. M. Powers (fellow writer).

Each witness made verbal, undocumented 

allegations without administ r a t i v e  

exhaustion as required by Army and Civil 

Service Regulations. (See Fort Eustis 

Civilian Personnel Regulations, TCFE 

690-1, Chapter 7, Section SX, and X)



Mrs. C. L. Cox and Mr. B. B. T h o r n t o n w e r e

found guilty of discrimination. Mrs. 

Perry was never petitioner's supervisor. 

LTC Hannum and Mrs. Powers were pending 

investigation and testified on hearsay, 

and numerous other fabricated distortions. 

VII. ARGUMENT FOR QUESTION #8

1. HAS P E T ITIONER WHO WAS FORCED TO 

RETIRE DUE TO EXTREME N E A R - ViOLENT RACE 

DISC R I M I N A T I O N  THE SAME RIGHTS AS A 

PRIVATE SECTOR EMPLOYEE FOR PUNITIVE, 

COMPENSATORY AND EMOTIONAL DAMAGES,

BACK PAY, AND PROMOTIONS UNDER 42 USC 

1981?

2. Since forced retirement, pet i t i oner 

is in the private s e c t o r . In paragraph 

21 of his original pro s e comp 1 a i n t of 

February 80, petitioner alleged emotional 

and mental suffering and damages m a n i ­

fested physically due to extreme, c o n ­

tinuous, systematic, near-violent and 

continuous race d i scrimination which is

61



not allowed under Title VII. However, 

Supreme Court Justice Stevens dissented; 

stated "...Congress intended federal 

employees to have the same rights a v a i l ­

able to remedy racial d i s c r i m i n a t i o n  as 

e m p 1oyees in the private sector." 

Petitioner's case was unfairly delayed 

four years between 1972 and 1976 until 

Brown v. GSA was decided by the Supreme 

Court. Senator Williams agreed with 

Supreme Court Justice Stevens. (Senate 

Committee Report, S 2515 , 9 2 d Congress, 

1st Session.

3. Brown v. GSA did not expressly 

decide the issue of Title Vil e x c l u s i v e ­

ness but a factual situation of timely 

appeal (See 84 Harvard Law Review 110 9” 

1304) and Johnson v. Railway Express 

Agency 421 US 454. Humphrey v. Portland 

Cement Co. (DC Tex 1973. 367 F . Supp. 

832, 488 F. 2d 691 (5th Cir 1974),

62



(A p p . F and G) .

IX. A R GUMENT FOR QUEST I ON #9 

]. Did the judge's numerous mistatements 

of facts, distortions, etc. in his 

opinion and o rde r and defendant's a t t o r ­

neys 1 d e l i berate mistatements of facts 

and distortions in the Post Trial Brief 

due to race of the peti tioner violate 

petitioner's rights under due process 

and equal protection of the US C o n s t i t u ­

tion so muS'h so a s to deny him p romot i on 

to GS-12? The opinion and order is 

without a factual base.

2. Their mi s tatements of facts , used as 

a primary basis for decision aga i ns t 

petitioner are so numerous by the judge 

and the attorneys that it is impossible 

to list them in this brief p e t i t i o n .

They are 1 i s t e d , in part, in petitioner's 

30 or more page appeal brief to the 

Fourth Circuit Court which for brevity 

is not enclosed in appendix of this

63



CONCLUSI  ON

Pet i t i oner , Jesse J. Johnson, pro 

se, respectfully prays that this h o n o r ­

able court considers the inherent and 

conti nuous injury and damages done by 

the Army and the court for 13 years 

aga i ns t him in unconstitutional ly deny- 

ing him promotions, injunctive relief, 

due process and equal protection against 

intentional, continuous, and s y s tematic 

race disc r i m i n a t i o n  which resulted in 

emotional distress, extreme mental agony, 

humiliation, pain and suffering and 

physical damage and operations; and that 

for reasons set forth herein, r e s p e c t ­

fully urge that this petition for a writ 

of certiorari to the United States Court 

of Appeals for the Fourth Circuit be 

granted and that, under the honorable 

concept of "Equal Justice under the Law"

p e t i t i o n .

63 a



that the Opinion and Order of the Circuit

Court and District Court be reversed so 

that petitioner can be promoted to 

Educational Specialist GS 1710-12, or 

equivalent position for which he is 

qualified, with back pay, grade and 

a 1 1owances and injunctive relief, or 

back pay and promotion to GS-12 without 

a formal finding of race d i s c r i m i n a t i o n  

under the Shaw v Library of Congress 

decision and EEOC policy, or, as an 

alternate remand in part and reverse in 

part and grant petitioner permission to 

amend his original c o m p l a i n t , if n e c e s ­

sary, to include c o m p e nsatory and p u n i ­

tive damages, humiliation, emotional 

stress, pain and suffering continually 

by the Army, and bias and prejudice of 

the c o u r t , and an order for a change of 

venue, preferably to a District Court in

the District Court of Washington, D. C. 

and that this honor a b l e  court remand

6b



this matter to the District Court for an 

award of attorney fees (pro se) and 

personal e x p e n s e s .

Respectfully submitted

Hampton, VA 23666 
(804) 838-1244

65



CERTIFICATE OF SERVICE

! hereby certify that ! have served 

three (3) copies each of this Petition 

for a writ of Certiorari upon counsel of 

record to the Respondent attorney, 

Michael A. Rhine, Assistant U, S. 

Attorney, P. 0. Box 60, Norfolk, VA 

23501 and Attorney Peter B. Lowenberg,

H QD A DAJA-LTC Room 2 D 4 3 7 > Pentagon, 

Washington, D. C. 20310 by depositing 

same as certified mail in a United 

States post office with first class 

postage prepaid as set forth above on 

or before September 25, 1982.

Hampton, VA 23666 
(80b) 838- 1 244



DOcket NO.

IN THE SUPREME COURT OF THE UNITED STATES

October Term, 1982

JESSE J. JOHNSON
Petitioner

vs
CLIFFORD ALEXANDER, JR.

in his official eapacityas Secretary

The Department ©f the Army, 
and his agents, assign® and

successors in office.

PETITION FOR WRIT OF CERTIORARI 
TO THE UNITED STATES COURT OF APPEALS 

FOR THE FOURTH CIRCUIT

1 . This is written t© prevent 
misunderstanding the APPENDIX which 
was hurriedly renumbered and which in' 
eludes a few blank pages, shown below:

a. Blank Pages: A9,A11, Al2a,
A17, Al8a , A38a.

b. Page Numbers Omitted: A7,
A15, A17, and A37.

2. All intended statements of the

JE 
hi .
Hampten, VA 23666 
80>+-838-12M+ 
PETITIONER PRO SE

©f the Army

Respondents

ERRATA SHEET

entiee APPENDIX are



APPENDIX



APPENDIX A 
OFFICE OF THE CLERK 

SUPREME COURT OF THE UNITED STATES 
WASHINGTON, D. C. 20543

August 13, 1982

Mr, Jesse J . Johnson 
41 Cornelius Drive 
H a m p t o n , VA 23666

APPENDIX A

RE: Jesse
Alexander,
A-l 39

J .
J r .

Johnson v. Clifford 
, etc., e t a 1 ._______

Dea r Mr, Johnson

Your application for an extension 
of time within which to file a petition 
for a writ of certiorari In the above- 
entitled case has been p resented to the 
Chief Justice, who on August 13, 1982, 
signed an order extending your time to 
and including September 25, 1982.

A copy of the Chief Justice's order 
is enclosed.

Very truly yours,

ALEXANDER L. STEVAS, 
Clerk

Page A1 By

Katherine A. Downs 
Assistant Clerk

rjb 
e n d  .
cc (letter only): The Honorable Rex E.

Lee
William K. Slate, 11, Esq. , 
Clerk, U.S. Court of Appeals, 
Fourth Circuit (your n o . 81-1239) 

A1



APPENDIX B
SUPREME COURT OF THE UNITED STATES

No. A - 139 APPENDIX B

JESSE J. JOHNSON,
Petitioner, 

v .

CLIFFORD ALEXANDER, JR., ETC., ET AL.

ORDER EXTENDING TIME TO FILE PETITION FOR 
WRIT OF CERTIORARI

UPON C O N S I D E R A T I O N  of the a pplication of 
petitioner
IT IS ORDERED that the time for filing a 
petition for writ of certiorari in the 
a b ove-entitled cause be, and the same is 
hereby, extended to and including 
September 25, 1982.

/s/ Warren E. Burger 
Chief Justice of the 
United States.

Dated this 1 3th_______ day of August 1 982 .

A2



APPENDIX C

UNITED STATES COURT OF APPEALS 

FOR THE FOURTH CIRCUIT 

NO. 81-1239

Jesse J. Johnson, Appellant,

versus

Clifford Alexander, Jr., in his
official capacity as Secretary
of the Army, et al, Appellees.

O R D E R

Upon c o n s ideration of the a p p e l l ­

ant's pro se petition for rehearing,

IT IS ORDERED that the petition for 

rehearing is DENIED.

Entered at the direction of Judge 

Hall for a panel consisting of Judge 

Hall, Judge Phillips and Judge.

M u r n a g h a n .

For the Court,
FILED

/s/ W i l liam K. Slate, II 
May 28, 1982 Clerk 
U. S . Court of 
Appeals, Fourth Circuit

A3



A P P E N D I X  B

UNITED STATES COURT OF APPEALS 

For the Fourth Circuit

No. 81-1239

Jesse J. Johnson, Appellant,

v

Clifford Alexander, Jr., 
in his official capacity as 
Secretary of the Army;
The United States Department 
of the Army, and his agents , 
assigns and successors in office,

Appel lees.

Appeal from the United States District 
Court for the Eastern District of 
Virginia, at Norfolk. Richard B. Kellam, 
District Judge.

Submitted: November 16, 19 81 Decided:
April 20, 1982

Before HALL, PHILLIPS and MURNAGHAN, 
Circuit J ud g e s .

Jesse J. Johnson, Appellant Pro Se.
Michael A. Rhine, Peter B. Loewenberg, and 
John S. Albanese, for the Appellees.



PER C U R !AM:
APPENDIX D (COnt)

A review of the record and the 

district court's opinion discloses that 

this appeal from that Court's order d i s ­

missing the plaintiff's complaint is 

without merit. Because the dispositive 

issues recently have been decided a u t h o r i ­

tatively, we dispense with oral argument 

and affirm the judgment below on the 

reasoning of the district court. Jesse J . 

Johnson v Clifford L , Alexander, J r . , C/A 

No. 80-6^3-N (E. D. V a . , Dec. 18, 1 9 8 0).

A5



Appendix B

I N THE UNITED STATES 

COURT OF APPEALS 

FOR THE FOURTH CIRCUIT 

RICHMOND, VIRGINIA

JESSE J. JOHNSON 

Appel 1 ant

v Civil Action No. 81-1239

CLIFFORD C. ALEXANDER, JR.,

Defendant

AFFIDAVIT OF FREDA C. CLARK,

EXPERT WITNESS, IN SUPPORT OF 

APPELLANT, JESSE J. JOHNSON 

STATE OF VIRGINIA 

COUNTY OF MADISON TO WIT:

Freda C. Clark, being first duly 

sworn, under oath states as follows:

That she is the Expert Witness in 

the a b o v e-captioned action, and makes thi 

affidavit in support of appellant Jesse J

A6 f t  ' 1



Johnson in connect i on with his case.

I. BACKGROUND

1. I, Freda C. Clark, as Expert 

Witness in the case of Jesse J. Johnson v 

Clifford Alexander, Jr., (CA 81-1239), 

hereby submit these sworn s t a t e m e n t s ;

2. I was unable to attend the second 

day of the trial in Hr. Johnson's case,

b December 1980 . i have carefully read 

the entire trial transcript, with e x h i ­

bits. The following information clarifies 

my testimony on the first day of trial 

and is based on the trial record and e x ­

hibits.

3. By way of background information

from 1950 to July 1977, i worked in the 

Office of the Secretary of the Army (OSA) , 

the Pentagon, Washington, D. C. During 

the period from 1952 to July 1977, 1

served in the Office of Employment Policy 

and Grievance Review (OEPGR) as Assistant 

Director; Chief, Equal Employment Opportu-

A8





nity (EEO) Branch; Deputy Director; and 

Acting Director, with primary r e s p o n s i ­

bility for the Equal Employment O p p o r t u ­

nity Program and the a d j u d ication of 

Equal Employment Opportunity complaints.

A summary of my education and experience 

was submitted to the Court. (Tr 189- 190) 

Currently I work as a consultant, on a 

free lance basis, in the areas of EEO and 

Civilian Personnel Administration.

b. I have had extensive training 

and experience in the e v a luation of 

employee qualifications. The thesis ! 

prepared in satisfying the requirements 

for a Master of Arts Degree was entitled 

"Rating Employees by Means of Rating 

Scales." The thesis involved an in- 

depth study of this specific aspect of 

personnel a d m i n I s t r a t i o n . Prior to my 

employment in OS A , I had one year of 

experience as a p s y c h o - m a t r i c i a n . i had 

seven years of experience in operating





personnel offices, the p r e ponderance of 

which concerned selection and placement 

functions. During the period from 1952 

to July 1977, 1 had primary responsibility 

for the review and final resolution of 

EEO complaints within the Department of 

the Army. A p p roximately 60 to 70 percent 

of EEO complaints concerned n o n - s e 1ection 

for appointment or promotion.

ii. ANALYSIS

5. I carefully examined the Job 

Element Rating Sheets for each of the 

three positions in Issue (D/E #]). My 

examination of the Rating Sheets d i s ­

closed numerous discrepancies which 

served to vitiate and nullify the validity 

and reliability of the promotion process.

A careful study of the promotion processes 

which covered the positions in point shows 

that they did not satisfy regulatory and 

procedural requirements. Applicable 

Civil Service regulations require:

A12





"Adequate promotion records... " :

"To provide answers to questions 
that management or employees may 
raise about the p romot i on program 
In general or specific p romotI on 
actions." (FPM 335.6-la)

in this connection, CIVIL SERVICE C O M M I S ­

SION regulations specify that:

"An agency must maintain and 
have a v a i 1a b 1e »..the following 
records ..."

"A temporary record of each 
promotion made under each plan.
This record is maintained for 
two years. ft must contai n 
sufficient information to allow 
reconstruction of the promotion 
a c t i o n . At a minimum, the 
record must Include the i n for­
mation below,,."

(underscoring supplied)
(FPM 335.6-lb (3)

"Evaluation methods and system 
for combining evaluations to 
obtain final ratings"; and

"Evaluations of the candidates 
(Including supervisory a p p r a i s ­
als, test scores, etc.)"; (FPM 
3 3 5 . 6—lb(3)(e) and (f)

Under Methods of e v a l u a t i n g  candidates 

to identify best-qualified, the r e g u l a ­

tions s t a t e :

A13



"(1) Once the a pp ro pr ia te  
ev a lua ti on criteria are 
identified, an agency must 
deter min e- -

(a) The methods to 
be used to evaIuate 
the cand i dates ;
(b) The sequence in 
which the methods will 
be applied; and
(c) The way in which 
the results of these 
methods will be combined
to determine the e m p l o y e e’s 
final rating,"

(FPM 3 3 5 . 6 b ( 1 ) (a)-(c)

6, The evide nce  of record on the 

eva luation methods and system of c o m b i ­

ning eva luations to obtain final ratings 

and the eval uat io n of candidates is set 

forth in the Job Element Rating Sheets 

for Mr. Johnson and for Mr. Richard Van 

Deren and Ms. Francine Perry. The latter 

two candidates were selected for the three 

positions in question. (D/E #1) Job

elements on which candidates were rated 

are listed on the left-hand side of the 

Rating Sheets under the heading of

"Ability (As Needed for the Job).

A1^

li



Section I of the Rating Sheets is designed 

to show how each candidate was rated on 

each of the listed elements on the basis 

of dem ons tra te d ability by means of 

experience, education, performance, and 

awards, with a range in points from 1 to

4. Section II of the Rating Sheets p r o ­

vides for each candidate to be rated on 

potential for the job, if the employee 

had not yet shown ability by means of 

experience, education, and perfo rm an ce  in 

the elements listed, with a range in 

points from zero to three. The design of 

the rating form is confusing in that it 

provides for total element points on both 

demonstr ate d ability and potential to be 

listed under Section II. The total 

scores should have been properly listed 

as separate columns.

7. The record does not contain 

sufficient information to allow recon-

A16



fin



struction of the promotion actions. 

Specifically, It is not possible to 

ascertain how the panels arrived at the 

final ratings of record. The rating 

processes were defective in that the Job 

Element Rating Sheets were prepared in an 

incomplete and inconsistent manner. The 

Rating Sheets do not show the points 

assigned by each panel member to each 

candidate under Section I (Demonstrated 

Ability) in the blocks under captions of 

experience, education, performance, and 

awards, or under Section IS (Potential 

for the Job) in the blocks under the 

capt i ons of experience, education, and 

performance. Theref ore  the requirement 

set forth in FPM 3 3 5 . 6 - l b (3) (f) for 

records on the eval uat io n of candidates 

(including appraisals, test scores, etc.) 

was not satisfied.

8. The Rating Sheets show the total

A18





point values and scores and the final 

ratings screening panels assigned to 

Hr. Johnson and to the candidates s e l e c ­

ted; however, they do not show the 

evalu ati on methods and system for c o m b i ­

ning eva luations to obtain final ratings 

as required by FPM 335.6-lb (3) ( e ) .

3. The p a n e l s 1 records of the 

eva luation and rating processes are 

replete with ambiguous inconsistencies 

and discrepancies. A study of the p a n e l s 1 

completed Rating Sheets shows that 

Hr. Johnson did not rece i ve fair and 

equal c o n s i d e r a t i o n . On Vacancy Number 

282-76, which listed five rating elements, 

Hr. Johnson rece i ved a rating of zero (of 

some value) under the caption of p o t e n ­

tial on four elements and a rating of 2 

on one element based on demonst ra ted  

ability. He received a total s co re of 2 

and a rating of "below 70" which was 

d i squa 1 i fy i ng. He was therefore elimi-



nated from further co nsi d er a t io n  (D/E # 1 ). 

As a result, he was referred as a best 

qualified candidate and selected for p r o ­

motion to a grade G S - 1710-12 position.

10. The evidence does not explain 

the system the panel used for combining 

point value scores and for converting 

scores to a final rating as required by 

the afor ec ite d regulation. Further, It 

does not explain why or how the panel 

assigned Mr. Johnson a rating of less 

than 70, which was di squ alifying, when 

the sole responsibility of the panel was 

to select the b es t- q ual if ied  candidates 

from the group of cand ? dates who should 

have previously been de term ined to be 

qua 1 ified.

11. The Rating Sheet for Vacancy 

Number 300-76 listed four rating elements. 

Under the caption of Demons tr ate d Ability, 

Mr. Johnson received a rating of 3 on one 

element and a rating of zero on three

A20



elements. The panel erred in that the 

form did not provide for a zero rating 

under the caption of De monstrated Ability 

(D/E #1) .

12. The Rating Sheet for Vacancy 

Number 306 - 76 lists five elements. Under 

the final caption on De monstrated Ability, 

Mr. Johnson received 3 points on one e l e ­

ment and a zero rating on four elements. 

The panel again erred in assigning him a 

zero rating on demonstrated ability when 

the form did not provide for such rating 

(D/E #1).

13• Under the caption of potential 

for the job, which provides for points of 

zero through three on each element, the 

panel glaringly erred by assigning 

Ms. Perry 9 points on one element and h 

points on each of the four remaining e l e ­

ments. The panel gave her a tota 1 of 25 

points when the possible total was only

A21



15 points. Under the final caption of 

demonstr at ed  ability, she received 4 

points on each of the five elements which 

totaled 20; however, she received a total 

score of 18, and a final rating of 94+1. 

There is no ex pla n at io n as to how the p a ­

nel arrived at the final score of 18 or 

the rating of 94+1.

14. it is evident that responsible 

members of the Civilian Personnel Office 

staff failed in their ob li g a ti o n  to 

assure that ev al ua t io n processes were 

appro pri at el y conducted and recorded in 

accordance with the regulatory r e q u i r e ­

ments. The regulations, in pertinent 

point, state:

"Staffing sp ecialists will 
serve as advisors to the 
raters, and assure that 
raters are trained in e v a l ­
uation method s."  (CPR 300 1 — 5h (3)

15. The panels were inconsistent In 

eva luating candidates' potential. They

A22



treated Mr. Johnson in a disparate

manner.

The panels gave Mr. Johnson either 

zero points or no points on potential for 

the jobs under Section SI of the Rating 

S h e e t s . Conversely, the panel for 

Vacancy Number 306-76 gave Ms. Perry a 

total of 25 points under the caption 

related to potential for the job. The 

Rating Sheet for Vacancy Number 282-76 

shows that Mr. Van Deren received a total 

score of h under the caption of potential 

(D/E #1)  .

16. Ms. Elizabeth Th rockmorton, the 

Defendant's Wi t n e s s , indicated that c a n ­

didates' potential was not an ap propriate 

factor for co nsi deration in the positions 

in issue; however, she did not explain 

why the panels rated the candidates on 

the basis of potential and did not c o m ­

ment on the foregoing inconsistencies,



discrepancies, and am biguities (Tr 612).

i l l .  S E L E C T I V E  PLACEMENT FACTOR

17. The job ann oun ce me nts  for the 

positions in issue did not list, as a 

selective placement f a c t o r , training or 

expe rie nce  in instruction Systems 

Development (iSD). A se le cti ve  placement 

factor is a q u a l if ic a ti on  essential for 

successful perfo rma nc e in the position to 

be filled. Applicants who do not possess 

this qu a l i fi ca t io n  were screened out as 

disqualified. The eviden ce shows that 

lack of training or expe ri enc e in iSD was 

applied In a manner tantamount to a 

selective placement or screen out factor. 

Applicants with no ISD experi en ce,  but 

who attended the th ree-week training 

course in iSD at Fort Lee, Virginia were 

generally referred as best qualified 

cand i d a t e s .

18. The Rating Sheets for each of



the three jobs in issue list the elements 

on which candidates were rated. Each 

Rating Sheet lists an element on ability 

to commun ica te  effec tiv el y in writ in g or 

in writing and orally. This is the only 

element on any one of the rating sheets 

which does not require knowledges, skills 

and abilities which can only be acquired 

by training or exp eri en ce in iSD. it was 

not possible for a candidate without 

training and experience in ISD to receive 

a ma x imu m score of more than k on any one 

of the three positions. Hr. Johnson's 

super vis or rated him Outstanding on oral 

and writ ten  communication; however, he 

received only two and three points on 

elements involving oral and written 

co m mun ic ati on (P/E #1).

19. Testimony of panel members 

indicates that training or e xp er ie nc e in 

ISD was considered highly essential for

A25



successful perfor man ce  i n the position. 

(USACARO, Report of Investigation, Agreed 

Ex. 5): (Mr. Gaskins, Sub Ex. L. p. 5 ; 

Capt. Porthouse, Sub Ex. N pp. 4 and 5; 

Major Sabino, Sub Ex. M, pp. 10 and 11; 

Mrs. F o u s h e e , Sub Ex. V, p . 1 2; Mr. H . 

Thompson, Sub Ex. U, p. 4; LTC H. 

Montgomery, Sub Ex. T, pp. 3 - 5 .)

2 0 . A pp li ca ble  regulations state: 

"E val u at io n procesures mus t - -

Distinguish carefully 
between the knowledges, skills, 
and abilities an employee must 
possess at the time of p r o m o ­
tion and those he can easily 
and quickly acquire after p r o ­
motion through e xp e ri enc e or 
training. Failure to make 
this important disti nc ti on  
tends to place artificial 
limits on competition; it 
fosters inbreeding and 
restricts the effec ti ven es s 
of manpower planning and 
career development by the 
agency." (FPM 335 3-6 a (3)

21. The evidence indicates that the 

training courses in IS D , which most of 

the employees included on the referral

A26



list had taken, were only three weeks in 

duration, (12-30 July 19/6)

22. The regulations also indicate

that it was improper to include IS D as a

sel ective placement factor:

"Requirement designed solely 
to eliminate the need for a 
brief period of training and 
adjustment (unless the period 
would be so long as to burden 
unreasonably the operations 
of the agency."

23. Mr. Johnson was not afforded an 

opp ortunity to attend a training course 

in USD prior to the time of the selection 

process (Agreed Ex. 12). if referred and 

selected, he could have acquired this 

training In a brief period of time.

IV. IMPROPER RE ASSIGNMENT OF 
MR. VAN DEREN

2k. Mr. Van Deren was illegally 

reassigned. Effective 5 December 1976 

Mr. Van Deren was promoted to the p o s i ­

tion of Educational Specialist, GS 3710-

A2 7



12 (Number 282). Effective January 1977

he was reassigned from this position to

that of Educational Specialist, GS 1710-

12 (Number 300), a different line of

work. Ap plicable regulations state:

"An agency may promote an 
employee or reassign him to 
a different line of work, or 
to a different ge ographic 
area, and It may transfer a 
present emplo yee  or reinstate 
a former employee of the same 
or another agency to a higher 
grade or different line of 
work, or to a different g e o ­
graphical area, only after 3 
months have elapsed since the 
employee's no n-t emporary 
compet it ive  a pp oin tm ent ."

(5 CFR 330.501)

V. FAILURE OF COMPLIANCE WITH 
THE DEPARTMENT'S DEC 1SI ON

25. Activity officials did not c o m ­

ply with the Department of the Army 

decision in Mr. Johnson's case. The 

decision is set forth in a letter, dated 

20 October 1978, addressed to Mr. Johnson 

by Mr, Joseph S. Bennett, the then

A28



Director of Equal Employment Opportunity 

for the Department of the Army. The 

decision included the following s t a t e ­

ments :

11 l have carefully 
evaluated all the 
in your comp 1 a i nt

reviewed and 
i n f o r m a t ? on 
fi le. .

"Based on my review of the 
information in your complaint 
file i find t h a t ...During my 
review of your complaint file,
I noted that the rating and 
ranking process for two of the 
positions in question ( A n n o u n ce ­
ment Number 300-76 and 306- 76) 
was acc om pli sh ed by two t e c h n i ­
cal advisors and one GS-9 
representative of the Civilian 
Personnel Office. CPR 3 3 5 . 3 -6h 
(2 ) (b) states that "...raters 
will occupy positions at a 
level no lower than that of the 
position being filled, and will 
be capable of making informed 
decisions regarding criteria 
and qu al if ica ti on in the 
occupational field." inasmuch 
as the co mposition of the 
panels for these two positions 
was improper, I am directing 
that the promotion actions for 
these positions be r e co n ­
structed in strict compliance 
with governing re gulations."
(Ag reed Ex. 13.)

Based on my ex perience in preparing

A29



and reviewing letters of decision for 

Mr. Bennett's signature, this di re ctive 

required activity officials to reprocess 

the promotions actions. Spe cifically 

they were to start over and to establish 

a new pane] to evaluate, rate, and record 

candidate's q ua li fic at ion s (Tr pp. 221- 

222} .

Evidence su bmitted  by D e f e n d a n t’s

counsel in Di sposition Form dated 3

November 78, states:

"Action required by para 3 of 
basic letter, 20 October 78, 
was accompl ish ed at the time 
the grievance examiner reviewed 
the actions." (Tr Ex. D-10)

Mr. Bennett's decision in the case

was based on a review and ev a lu a t i on  of 

all the Information in Mr. Johnson's 

complaint file. Copies of the reports 

of the USACARO Investigator and the C o m ­

plaints Examiner are included in the c o m ­

plaint file. There is no evidence to 

show that the promotion actions for the

A30



positions in question (Vacancy Numbers 

300~76 and 306- 7 6 ) were reconstructed 

after and in compliance with Mr. Bennett's 

d e c i s i o n .

V i . UNQ.UAL i F! ED MEMBERS OF 
THE RANKING PANEL

26. Ms. Donna Nora F o u s h e e , P e r s o n ­

nel Man agement Specialist, GS 201-9, 

stated: "As a panel member, I or ig inally

got the other two panel members to meet 

with me in deciding the q ua! ifi ca tio ns of 

several applicants, all of those who 

applied." (Report of Investigation,

Agreed Ex. 5, Sub Ex. V P 2 ) . She also 

stated: "Each of the panel members did a

rating on our own" and "there was little 

variance between the ratings of the th ree 

of us." (Agreed Ex. 5, Sub Ex. V, pp. 3, 

5, and 8). Ms. F o u s h e e 1s service on the 

panel was illegal in that it violated 

Department of the Army regulations. She 

was not a su b je c t-m at ter  sp eci alist in

A31



the work, the positions, and therefore 

was not capable of making informed 

decisions regarding criteria and q u a l i f i ­

cations in the occupational field. She 

was GS-9 grade on a ranking panel for 

G S - 12 * s , in vi olation of CPR 335 3-6h (2) 

(L) . The testimony of Hr. H. Thompson 

and LTC H. Mo ntgomery that she did not 

rate or rank is pretext to cover up 

discrim in ato ry  violations which impacted 

against Hr. Johnson. Mrs. Foushee was a 

member of Mr. B. B. Thornton's Civilian 

Personnel Office staff.

27. The evide nce  of record does not 

show that LTC Horace Montgomery, Jr., who 

served on the panels for position v a c a n ­

cies 300-76 and 306-76 was a subject 

matter specialist or that he was capable 

of making informed decisions regarding 

criteria and q ua li fic at ion s in the o c c u ­

pational field. His back gro un d contains

132



no evidenc e of training or e xp er ie nce  in 

the work involved. (Tr p . 297) He is an 

infantry officer. His testimony at the 

trial Indicated that he was not kn ow le d g e ­

able of the work covered by the positions 

(Tr 297-300).

28. Thus the rank i ng panels of 300- 

76 and 3 0 6 - 7 6 had only one qu al ified m e m ­

ber who was Mr. Home r T h o m p s o n , white, 

Educat i o n a 1 Specialist, GS 1710-12. He 

knew the s e l e c t e e , Mr. Richard Van Deren.

29. Ms. Elizabeth B. Th ro ck morton, 

Expert Witness for Defendant, was 

quest ion ed by Defendant's Counsel re g a r d­

ing her relationship with me. She stated 

that she was familiar with me; that ! 

worked for Mr. Bennett and that "...when 

Mr. Bennett's office in reviewing g r i e ­

vances or complaints came to the point 

where they were to determine the 

propriety of a merit promotion action or

A33



a procedure, they send the action to my 

office and to me to make the d e t e r m i n a ­

tion on whe the r an error had occurr ed and 

what the appro pri at e corr ec tiv e action 

would be."

i have no knowledge of Ms. T h r o c k ­

m o r t o n’s par tic ip ati ng  In the review and 

resolution of complaints which were 

decided at the OSA level.

30. in early 1972 Mr. Joseph S. 

Bennett was assigned to OSA in the 

capacity of Deputy for Civilian Personnel 

Policy and Director of EEO for DA. I 

worked under the s upe rv isi on  of, and 

served as advisor to, Mr. Bennett from 

early 1972 through 1 July 1977.

3 K  Ms. T hr oc km ort on  worked  in the 

Office of the Director of Civilian 

Personnel (OCP), which was org an iz a t i on -  

a H y  located at an echelon below O S A . I 

met Ms. Thr oc kmo rt on in the spring of 

1977. We were introduced by an employee



who worked under my supervision. 1 do 

not recall that i had any subsequent 

conversa tio n or contact with Ms. T h r o c k ­

morton until we both appeared at 

Mr. Johnson's trial.

32, During the period of Ms. T h r o c k ­

morton's tenure In OCP , which she stated 

began in March 1376, (D/E 6) Mr. Bennett's 

office had no re sponsibility for the 

adj ud ica ti on of employee grievances 

regarding no n- se lec ti on for promotion. 

Employee grievances do not involve an 

issue of prohibited discrim ina tio n.  In 

the early 1970's responsibility for final 

decision on employ ee grievances regarding 

non-s el ect io n for promotion was delegated 

to and vested in commanders of Major Army 

Commands in the United States and o v e r ­

seas (CPR 771). Mr. Bennett, as Director 

of EEO, had sole responsibility for

rendering final decisions within the 

Department of the Army on EEO complaints.



33. As I recall, ap p r ox i m at e l y  three 

months prior to my retirement a procedure 

was est ab li sh e d for referring to the 

Director of Civilian Personnel, for 

coordination, EEO complaints which 

required co rrection of personnel m a n a g e ­

ment deficiencies. The Director of 

Civilian Personnel co ncurred in

Mr. Bennett's decision for corr ec tiv e 

action in Mr. J o h n s o n’s case.

34. 1 have no knowledge of the 

instance Ms. Th ro c km or t on  cited in which 

Mr. Bennett, on her advice, revised the 

remedy in a case in which di sc ri m i n at i o n  

had been found. She cited no speci fi c 

Identifying information (Tr 603-604).

35. Army Regulations on EEO include

the following requirements:

"!n complaints co ncerni ng n o n ­
sel ection for appoi ntm ent  or 
promotion, make a detailed 
analysis of the compar at ive  
qu al ifi ca tio ns  of both c o m p l a i ­
nant and the selectee(s) in



relation to the requirements 
for the position." (CPR 700 
(C 16) 7 1 3.B-6c (1) (e) , 27 
June 1973)."

36. i prepared a compa ra ti ve  e v a l u a ­

tion of the qualif ica ti ons  of Hr. Johnson 

and the selectees to the extent possible 

on the basis of inadequate records. (P/E 

6) in my opinion, this c om par is on  ind i­

cates that Mr. Johnson's q ua li fi ca tio ns , 

as man ifested by his jo b-r el a t ed  e d u c a ­

tional achievements and military and 

civilian experiences, and his off-t he - 

job speaking and writing acco mp lis hm ent s,  

equaled and exceeded the q ual if ic ati on s 

of Hr. Van Deren and Ms. Perry (Tr pp. 

202- 208) .

V e r i f i c a t i o n : !, Freda C. Clark,

Expert Witness in this cause of action, 

declare that i have read the foregoing 

affidavit and know the contents of same, 

and state that the contents thereof are 

true and correct to the best of my know-

138



f t



l edge,  i nformat i on,  and b e l i e f .

Freda C. Clark

SUBSCRIBED AND SWORN TO before me, 

this 14th day of May 1981 in my County 

and State aforesaid.

My com mission expires: April 1, 1385

Patricia A. Doggett 
Notary Public

SEAL

2 i ncl

1. DA Decoration for Meritorious 
Civilian Service (Freda C. Clark).

2. Transcript of Graduate Courses 
(Freda C. Clark).

Copy Furnished: John S . Albanese
Civilian Personnel 
Litigations 
Department of Army 
Washington, D. C. 20310

A39



APPENDIX F

EXTRACT FROM JOINT TRIAL (1972-1976) 

In The

UNITED STATES COURT OF APPEALS 

For the Fourth Circuit

RECORD NO. 77-1 6 56~

JESSE J . JOHNSON,
P l a i n t i f f - A p p e l 1 a n t ,

v .

ROBERT E. HAMPTON, et a 1.,
D e f e n d a n t s -A p p e 1 lees.

APPEAL FROM THE UNITED STATES 
DISTRICT COURT FOR THE 

EASTERN DISTRICT OF VIRGINIA 
NEWPORT NEWS DIVISION

BRIEF FOR A PP EL LAN T

EXTRACT

TO LIST
A PATTERN OF DISCRIMINATION 

BY THE COURT



EXTRACT

VS .

THE TRIAL COURT ABUSED STS D I S CR ET ION  IN 
MANY OF ITS RULiNGS

It is conceded that a d et er mi nat io n 

of what constitutes judicial dis cretion 

is very difficult but in choosing which 

course to take, this discretion can be 

abused.

The Supreme Court stated that d i s ­

cretion must be exercised in light of 

the large objective of the Civil Rights 

Act. (Hecht v. Bowles 321, US 32 1 , 33 1 

(1944) (Albe rma rl e Paper v. Moody , 422 

US 405 , 416) (1975).

In the instant case, to cite an 

example, the court ruled that appellant's 

expert witness, Mr. Woods, could not 

testify as to the many procedural and 

unconstitutional violations com mitted by 

the Civil Service Commission, the Army, 

and their agents; ( T . V . I .  P98 , 99 , 10 0) ;



however, the court allowed d e f e n d a n t s 1 

witnesses, Mr. D. Clos, and Mr. Oben 

Johnson to state their opinions as to 

procedures and findings of d i sc r i mi nat io n 

based on records not before the court; 

although they are not expert witnesses. 

(T.V.Ii. 289; T.V.II. 319, 320). The 

court also allowed Mr. Gatling, the black 

who was selected, to rate hims el f as to 

how qua lified he is suppos ed  to be as 

EE00 without verification; however, the 

court disre ga rde d continuing intentional 

di scr imi nat io n against appellant and 

ove rwh elm ing  evidence of the q u a l i f i ­

cations of appellant.

A further example of abuse of d i s ­

cretion is that the c o u r t’s decision to 

use the B rown v. G ,S .A . Supreme Court 

decision to restrict appellant to Title 

Vil and to January 1973 and not to use 

Chandler v. Roudebush to allow appellant



trial de Novo, es pecially in view of the 

fact that the four years delay between 

initiation of the instant action 

(Septembe r 1 9 7 2 ) on the merits and actual 

trial in October 1976 was due in part to 

delaying act i ons by defendants . Th e 

court denied appellant trial de Novo 

although the same defendants were d i s c r i ­

minating be fo re and after the informal 

ag r e e m e n t .

In its ev aluation of the evidence,

the court clearly abused its dis cretion

by making such statements as:

"...Even had plaintiff estab li she d 
a prima facie case as outlined in 
McDonald Douglas, the court Is of 
the opinion that plaintiff's own 
personnel difficulties themselves 
could serve to disqualify him 
from selection to a position 
requiring great powers of c o n c i l ­
iation and co mpr omise..."

This finding infers that, although the

white defendants are the ag gressive and

continuing discriminators that all black



employees and appellant are at fault for 

this discrim ina ti on,  ignoring history of 

nearly kQO years. The court erred in not 

recognizing the Army's own finding of 

racial di s cr i min at ion  involving the same 

defendants before and after the a g r e e ­

ment; defendants never-e ndi ng  array of 

unlawful d is cr imi na tor y acts; the u n c o n ­

stitutional Civil Service complaint p r o ­

cess; and the h ist or ic need for the 5th, 

1 3 th and 14th amendments to the c o n s t i t u ­

tion, Executive Orders, Civil Rights laws 

and various regulations to protect a p p e l ­

lant and others from intentional d i s c r i ­

mination. There is no evidence that 

appellant cannot conciliate nor c o m p r o ­

mise nor that Oben Johnson, Gatling, nor 

Clos can do the same. This is abuse of 

discretion based on assumptions. The 

court is penalizing appellant for 

defending hims elf  against aggressive



con tinuing intentional discrimination. 

Must he suffer in silence as thousands 

are doing? The appellant is In court 

because defendants have abused discretion 

and authority as a cloak to cover c o n t i ­

nued racial di scr im in at i on  for ten years.

The court also abused its discretion 

in not ruling on punitive damages and 

compensatory damages due to emotional 

distress, mental agony and racial 

dis cr im in at io n  in spite of the array of 

intentional d i s c r i m i n a t o r i a l , u n c o n s t i t u ­

tional, and unlawful personnel acts of 

defendants for ten years, and the e v i ­

dence of the expert witness, Dr. Charles 

F. Christian ( T .V . I „ P232-244) (PX 64, 

Psychiatric Evaluation Report), (PX 39, 

P 1 7“!8), and evidence of expert witness 

Mr. Woods on the use of unauthorized 

special factors to disqualify appellant 

for G5-12 and u nc on s ti tut io na li ty of



The court abused d is cre ti on  when it 

interrupted appellant when he began to 

describe the racist and di sc r i mi n a t in g  

environment in which he had to work  with 

defendants Lane, Lewis, Cox, and 

Rodriguez, Thornton, and military super- 

visors (T.V.I. 165, 166, 195, 196) while 

the court allowed defendants 1 witness to 

testify at length. (T.V.i. 2 8 2 - 3 6 3).

Furthermore, Mr. C 1 o s ‘ entire 

testimony was dated prior to the infor­

mal agreement (May, June 1967) and 

Gatling's testimony was entirely ir r e l e ­

vant to the issues. The primary d i s c r i ­

minating officials (white) were not s u b ­

poenaed for a trial de Novo; however,

Mr. Oben Johnson, EEOO, Gatling, EEOO, 

and Yuille, Director, EEOO (all black) 

and irrelevant to the primary issues of 

discri min ati on  were subpoenaed. The

Civil Service process.



court and the administrative process

shielded white defendants who d i s c r i m i ­

nate d under disc ret io n by refusing to 

require them to testify under oath so 

that their demeanor could be o b s e r v e d .

The court rushed appellant t h r o u g h ­

out the trial to finish by 5:00 p.m. but 

allowed defendants time to put on e v i ­

dence leisurably and tried to create the 

impression that the Army leans ov er board 

to help appellant. The Army has destroyed 

a p p e 11 an t .

The court also abused di sc retion 

when it stated that the demeanor of apel- 

l a n t’s witnesses and appellant were cause 

to doubt the soundness of his claim of 

intentional d is cr imi na tio n and damages.

The entire a dmi ni str at ive  and court 

record also refutes this ruling. In fact, 

the demeanor of the U, S, Attorney was 

very intemperate in tone and was vocally



loud, abrupt, and Insulting.

The appellant had no duty to prove discri­

mination against other blacks; this is not a 

class action. The tone of the decisIon was not 

impartial and was not based squarely on evidence 

but on assumptions and abuse of discretion.

!n the U. S. Court of Appeals, Seventh 

Circuit, the Court did not bar appellant with 

Brown v. G.S.A. (U.S. of America, et al., Plain­

tiff-Appellant v. City of Chicago, et al., 

Defendants-Appellants No. 76-1113, 76-1152, 

76-1205, and 76-1344 (Argued June 14, 1976) 

(Decided January 11, 1977), (Fed Supp. 555-540). 

This is a case of Black Policemen. Appellant 

in instant case has the same rights in court 

under Section 1981 as policemen have In state 

court as well as the Constitution and Executive 

orders.

Interrogatories were not properly pro­

cessed by the court.

The court*s summary of the facts in saying



for example, resulted in " improper treatment11 

instead of "discriminatory treatment";

"position had been abolished," instead of 

"position had been raised"; and "alleged 

i regularities" from February 1966, instead of 

"alleged irregularities and discrimination" 

from February 1366; and failure to mention 

appellant's complaint to Colonel Ben Johnson in 

April 1967 and the Army's finding of discrimi­

nation in November 1972 are examples of abuse of 

discretion by the court to slant the summary of 

facts in favor of the government, rather than 

impartiality.

The court's use of the preponderance 

standard of evidence required the assumption of 

the role of fact-weigher without hearing live 

testimony of white defendants nor observing 

their demeanor; therefore, the court abused 

discretion.

Discrimination is a subtle fact...if it is

present anywhere In the Federal establishment, it

must be promptly extinguished.



IN THE UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT 

* * * * * * * *
APPENDIX G

NO. 77-1656 JO LIST
APATTERN

* * * * * * * *  BY THE
COURT

JESSE J . JOHNSON, *

PLA iNT IFF-APPELLANT

VS. *

ROBERT E. HAMPTON, *
ET AL. ,

DEF END ANT S -A P PE L LE ES

* * * * * * * *

On Appeal from the United States 
District Court for the 

Eastern District of Virginia 
Newport News Division

* * * * * * * *

MOTION FOR REHEARING AND SU G G E S TI O N  OF 
REHEAR i NG EN BANC

* * * * * *  * *

TO THE HONORABLE COURT OF APPEALS:

The facts are adequately and fully 

set out in P 1 a i n t i f f -A p p e 11 a n t 1s brief 

and reply brief. Leave to file this



motion for rehearing was granted by this 

Court and the deadline for filing said 

motion was extended to January 29, 1979.

P A R T i C U L A R 1ZATiON OF POINTS OVERL OO KED

1. Title V!i should not con st itu te  

the exclusive and pr eemptive remedy for 

federal employees under the facts of this 

cause.

2. The district court's finding 

that appellant was not disc rim in at ed  

against in hiring is clearly erroneous.

3. The failure of the district 

court to grant injunctive relief is 

clearly erroneous.

ARGUMENT

The trial court relied upon the 

holding of B rown v. General Services 

Adm ? n i s t rat ? o n , 425 U.S. 820 ( 1976) in 

deciding that Title VII of the Civil 

Rights Act of 1964, as amended, provides 

the exc lusive and preemptive remedy for



federal employees alleging job d i s c r i m i ­

nation.

Brown, s u p r a , should be restricted 

in its holding to apply only when the 

federal employee has untimely filed 

charges of di sc r im in a ti on  and should not 

be de t erm in ati ve  of the range or s u b ­

stance of remedies when the charge has 

been timely filed.

The factual basis of appellant's 

claim distinguishes his claim from the 

holding of B r o w n . Appellant timely 

filed his charge of di sc ri m i na t i o n and 

exh aus ted  all ad min is tr at i ve  remedies 

prior to filing suit. Appellant has 

alleged that he has been su bj ected to 

systemic racial and/or sexual d i s c r i m i ­

nation from his original a pp li ca ti on  for 

employment at Ft. Eustis through trial. 

Appellant alleges that su pervisors and 

officials of Ft. Eustis have conspired to



deprive him of his civil rights in 

violation of hZ U.S.C. Section 1985 and 

that such officials con t i nue to conspire 

to deprive appellant of his civil rights.

Appellant produced evidence of the 

psychic injury he has sustained as a 

result of di sc rim in ato ry  treatment. 

Damages for psychic injury are not 

recoverable under Title V ! I , so by 

restricting ju ri sd i ct io n  to Title VI!, 

appellant is deprived of the range of 

remedies available to a private employee.

Limiting the range of remedies is 

incongruous with the purpose and intent 

of Congress in ex panding Title Vil to 

include federal em ployment as reflected 

In the legislative history set out in 

pages 11-15 of appellant's reply brief.

! i .

The greatest obsta cle  facing a p p e l ­

lant is the clearly erroneous standard. 

This is a standard created by Rule 52 of

A 53



the Federal Rules of Civil Procedure.

Justice Reed in United States v.

United States G y p s u m , 10, 33 U.S. 364,

(1944) discusses the clearly erroneous

standard with the following comments:

That rule (Rule 52) prescribes 
that findings of fact in actions 
tried without a jury shall not 
be set aside unless clearly 
erroneous, and due regard shall 
be given to the o pp or tu nit y of 
the trial court to judge the 
cre dibility of w it ne ss es .. ,.
The findings were never 
conclusive however. A finding 
is clearly erroneous when 
although there is e vid en ce  to 
support it, the reviewing court 
on the entire e vi de nce  is left 
with the definite and firm 
conviction that a mistake has 
been c o m m i t t e d .

Appellant submits that in light of 

the undisputed testimony of the history 

of discri mi nat or y treatment including 

the unlawful separation, illegal 

red uct ion -in-force, the violation of the 

informal agreement, the testimony of w i t ­

nesses regarding s ys te ma tic  d i s c r i m i ­

nation against black employees at Fort



Eustls and Fort Monroe, and the i n t e l l e c ­

tual segreg at ion  of appellant by C a u c a s ­

ian co-workers; the finding that the 

failure to even consider appellant m i n i ­

mally qualified when other federal 

installations around the country found 

appellant highly qualified, should leave 

the definite impression that a mistake 

has been committed.

The trial court failed to even c o n ­

sider the eviden ce of appellant's 

applic at ion  for the first opening as 

Equal Employment Op portunity Officer at 

Ft. Monroe and confined its analysis to 

the second appli cat io n for employment 

when Mr. Gatling, a black naval officer, 

was employed. Whether or not the trial 

court found plaintiff's expert witness 

credible with regard to appellant's 

qualifications is immaterial since the

preponder an ce  of testimony estab li she d 

that appellant made out a prima facie

A 55



showing of d is cr i min at ion  with regard to 

the first opening as EEO offic er which 

was not rebutted by the government as 

required by H e O o n n e 11 - Doug 1 ass C o r p . v. 

Green , k 11 U.S. 792 ( 1 973).

M l .

The failure of the trial court to 

grant any injunctive relief is p a r t i c u ­

larly perplexing In light of the Court's 

finding that appellant has been m i s ­

treated and subjected to abuse by c o ­

employees and supervisors. The trial 

court found that appellant's troubles 

stem from perso nal it y d i f fe rences rather 

than racial or sexual bias, and abuse of 

Court discretion.

Justice Marshall, dissenting in 

University of C a l ? fo rn ? a Regents v . B a k k e , 

57 L.Edo 750 (1978) el oquent ly sets out 

the deplorable history of institutional 

racism in the United States. Of particu-



1 a r i nteres t herein is the following

descr i pt i o n :

The enforced seg regat i on of the 
races continued into the middle 
of the 20th century. in both 
World Wars, Negroes were for 
the most part confined to 
separate military units. (t 
was not until 1948 that an end 
to segre ga tio n in the military 
was ordered by President 
Truman. And the history of 
the exclusion of Negro c h i l ­
dren from white public schools 
is too well known and recent 
to require repeat i ng here...

The position of the Negro 
today In America is the 
tragic but inevitable c o n s e ­
quence of centuries of 
unequal treatment. Measured 
by any benchmark of comfort as 
achievement, meaningful 
equality remains a distant 
dream for the Negro...

In light of the sorry history 
of di sc rim in ati on and its 
dev astating impact on the 
lives of Negroes, bringing 
the Negro into the main 
stream of American life 
should be a state interest of 
the highest order. To fail 
to do so is to ensure that 
America will forever remain a 
divided society.

Appellant is one of those



Individuals who is atte mpt ing  to bring 

"the Negro into the m a i n st r e am  of 

American lives." He is the product of 

a seg regated society: appellant attended

racially se gregated schools, and served 

his count ry in a racial 1y seg regated 

military unit. Yet appellant has devoted 

his life since retirement toward the 

goal of integration. He has with pride 

authored nume rous books on the ro 1 e of 

Black soldiers in American history. But 

a p p e l l a n t s  personal struggle for dignity 

and respect seems at times to be in sur­

mou ntable because of the depth and 

Intensity of the racial bigotry he faces 

continuou sly on the job. Appellant has 

been required since his original a p p l i ­

cation for em ployment at Ft. Eustis to 

devote most of his leisure t i me to 

challe ngi ng  adverse personnel actions in 

an attempt to secure equality.

Thus, in light of the un co ntradicted



evidence set out In Argument M ,  the 

finding that the intellectual isolation 

of appellant from his co-wo rke rs is not 

an unlawful em ployment practice to be 

remedied by injunctive relief is clearly 

erroneous.

There is no doubt that segregating 

whites and Negroes in separate d e p a r t ­

ments,, or subj ec tin g Black e m p 1oyees to 

d i s pa rate treatment in terms of wages, 

constitutes unlawful employment p r a c ­

tices.

By isolating appellant from intel­

lectual exchan ge with other writers and 

supervisors, appellant is su bj ected to 

disparate conditions of work.

Cutting appellant off from social 

and intellectual exchange promotes d i s ­

trust, creates hatred and thwarps the 

intellectual development of not only the 

appellant, but his Caucasian co-workers



and is reverse s eg re g at io n behind s e p a ­

rate walls In an integrated office.

This is in violation of the U, S. c o n s t i ­

tution and the U, S. Supreme Court 

decisions.

The entire history of appellant's 

struggle for equality at Ft. Eustis and 

at Ft. Monroe, Virginia renders the find- 

ind of no di sc ri m in at i on  as clearly 

erroneous and in violation of the U. S. 

Cons t i tut I o n .

Wh e re for e appellant prays that this 

motion for rehearing and su g g e s ti o n  of 

rehearing en banc be granted and that the 

judgement of the district court be 

reversed for a new trial.

Respect ful ly submitted

JESSE J. JOHNSON 
P l a i nt i ff -A p p el l a n t

JESSE J . JOHNSON 
Pro se

A 5 9 a



CE RTI FI CAT E OF SERVICE

t , Jesse J. J o h n s o n , hereby 

certify that a true and correct copy of 

the foregoing has been deposited in the 

U. S, mail, postage prepaid on the 29th 

day of January 1979 to Hr. Roger T. 

Williams, P. 0. Box 60, Norfolk, 

Virginia 23501.

JESSE J. JOHNSON 
Pro se

A60



APPENDIX H

COPY

CA 80-643-N

DEPARTMENT OP THE ARMY

OPPICE OP THE JUDGE ADVOCATE GENERAL

WASHINGTON, D.C. 20310

(Received September 22, 1980 
Clerk U .S. District Court 
Norfolk, Virginia)

Reed. September 24, 1980 
Clerk U.S. District Court 
Newport News, VA 19 Sep 1980

OK Meg 9-23-80

Mr. Michael Ginn 
United States District Court 
Post Office Building 
Granby Street 
Norfolk, VA 23502

This is to confirm the arrangements you 
made with Captain John S. Albanese, of 
this office, to reschedule the date of 
the nearing of the above-captioned case 
to December 2, 1980. Thank you for 
your help in this matter.

Sincerely,

s/
cf PETER B. LOWENBERG
John M. Cloud, Chief, Civilian Person-
Esquire, 214, nel, Litigation
Executive Building 
JANAF Shopping Center 
Norfolk, VA 23502

A60a



DEPARTMENT OP THE ARMY 
OFFICE OF THE JUDGE ADVOCATE GENERAL 

WASHINGTON, D.C. 20310

23 October 1980 
202-697-7956

DAJA-LTC

SUBJECT: Johnson v Alexander
Civil Action No. 80-643-N

Mr. Farley Power, Jr.
Clerk, U.S. District Court 
Eastern District of Virginia 
Norfolk Division 
Norfolk, VA 23501

Dear Mr. Power:

At the pre-trial conference held in the 
above captioned case on Friday, October 
17, 1980, I presented the enclosed mo­
tion for Extension of Time to Judge 
Kellam. T ' anT''^rwarding~this copy to 
you so that your files may be complete 
and to insure proper filing.

PETER B. LOWENBERG 
Chief, Cir. Personnel 

3 /  Litigation
by John S. Albanese 
Captain JAG C
Civilian Personnel Litigation

APPENDIX l
COPY

A60b



APPENDIX J

COPY

TO: CLERK, NORFOLK

RE: CIVIL ACTION NO. 80-643-N

JOHNSON
Y

ALEXANDER et al

HEARING SET on October 31, 1980 at 
3:30 p. m.

Discovery problems notified for 
plaintiff by Meg to John M. CloucT" 
(Johnson)
For Defendant (By Meg to Mr. Reine 
(lowenberg)

By Meg
Date 10-17-80

A60c



c/a 80-643-N 

T O : CLERK NORFOLK
RE: CIVIL ACTION 80-40NN (has since

been transferred to Norfolk)

JESSE J. JOHNSON 
v

ALEXANDER et al

Hearing cancelled on November 6, 1980 
(no jury) at 10:00 a. m.

Hearing reset on December 2, 1980, 
10:00 a. m .

Trial date continued to accommodate 
honeymoon of P. LowenlseriT Okay

Per Judge Clarke' agreement of J. Cloud 
Other dates remain unchanged.

NOTOFIED: For plaintiff (by Lowenberg
to J. Cloud)

For defendant (by Meg to lowenberg) by
Meg,

Date 9-18-80

APPENDIX K
COPY

161



APPEND!X L

i N THE UNITED STATES DISTRICT COURT 

FOR THE EASTERN DISTRICT OF VIRGI NI A 

NOFROIK. DIVIS ION 

JESSE J . JOHNSON,

Plaintiff,

v. CIVIL ACTION

CLIFFORD L. NO. 80-643-N
ALEXANDER, JR.,

Defendant.

OPINION AND ORDER

In his complaint filed herein Jesse 

J. Johnson alleges " d i s cr im i n at i o n  in 

that he was rated 'qualified® rather 

than ‘highly q u a l i f i e d 1 or 'best 

q u a l i f i e d 1 on plaintiff's appli ca tio n 

for Education Sp ecialist (GS - 1 7 1 0 - 1 2) .11 

Complaint f 7a. He says that as a re­

sult of his rating he was not chosen for 

the position of a GS-12.

i .

Many facts are stipulated, including

A62



Plaintiff is a black male who 

retired from the United States Army in 

the grade of Lieutenant Colonel sometime 

about 1966. He was employed in a c i v i l ­

ian capacity from about July 1967 until 

July 1980 at Fort Eustis, Virginia. In 

January 1973, he was reinstated to his 

former Civil Service position pursuant to 

a complaint filed. He has filed several 

complaints of d is cr im ina ti on.  As of 

October 1976, he had 20 years Army s e r ­

vice and 9 years in Civil Service.

Sometime in 1976, he made a p p l i c a ­

tion for promotion to Education S p e c i a ­

list GS-1710-12. Three GS- 1 2 positions 

were advertised, namely, 282-76, 300-76 

and 306-76. Other applicants included 

Richard Van Deren (white) and Francine 

Perry (black female). One element of 

the job rating criteria for said p o si ­

tions was instruction Systems Development 

(ISD), used as an element for appl i cants

A 63



to be cla ssified best qualifi ed  for the 

positions in question. Until the p r o m o ­

tion of Francine Perry, no black had 

previously been promoted to the position 

of Education Specialist G S -1710-12 at 

Fort Eustis.

I 1 .

In brief, plaintiff asserts as 

grounds for relief his co nte ntion he was 

the one best qualified for the positions 

in question, and that he was not given 

the rating of highly qualified or best 

qualified because of his race. To s u p ­

port such contentions he says that the 

panels chosen to rate or rank the a p p l i ­

cants were improperly constituted, that 

blacks had not been chosen to attend the 

ISO courses, and so on.

Although plaintiff alleged d i s c r i m i ­

nation against him because of race and 

sex, at trial he advised he wi shed to



drop the sex di scr im in at i on  charge. One 

applicant chosen over pl ainti ff was a 

white male; the other a black female.

Each of them were rated as better q u a l i ­

fied than plaintiff. The questi on  then 

posed is whether there was any act of 

discri mi nat io n in the selection of the 

rating panels or in the action of the 

rating panels, or the selecting officer. 

Whether plaintiff agrees or not, once 

the list has been prepared showing one 

candidate qualified and the others highly 

qualified or best qualified, one could 

hardly suggest that d is cr imi na ti on  

occurred because the ones highly q u a l i ­

fied or best qualified were chosen over 

the one rated only qualified.

ill.

Plaintiff has the duty to make out a 

priina facie case before defendant is 

requ i red to counter with ev i dence of a 

legitimate or non-discrimi natory reason

A 65



for the action taken Me Donne 1 1

Douglas' Co rporation v. G r e e n , 4 1 1 U.S.

732 , 802, 93 S.Ct. 1817, 1824 (1973); 

Furnco Con st ruc ti on C or po rat ion  v .

Waters , 438 U.S. 567 , 98 S.Ct. 2943 

(1978). The burden which may be shifted 

to defendant "is merely that of proving 

that he based his emp loy me nt  decision on 

a legitimate cons iderat i o n , and not an 

illegitimate one s uch as race" and to 

"dispel the adverse i n fe ren ce f rom a 

prima facie show i ng under McDonnell 

Doug I a s , the employer need only ’ar t i c u ­

late some legitimate reason for the 

e m p l o y e e’s r e j e c t i o n . 1 411 U.S. at 8 9 2." 

Furnco Construc ti on Co rporation v .

Waters , s u p r a . Not only must a plaintiff, 

complaining as does the plaintiff here, 

show that he sough t the position, but 

"that the applicant was qu al ified to 

fill the pos i t i on , having such s k i1 Is...

as were necessary for pe rformance of the

a 66



work...." n il ,] v. M^SJLSXIL—LLactrjc cO » »

1 n c „ , 596 F „2d 99, 104 (4th C i r . 1979). 

Any "Title Vli pl aintiff must carry the 

Initial burden of offering evide nc e a d e ­

quate to create an inference that an 

employment decision was based on a 

di sc rim in ato ry criterion illegal under 

the Act." International Br otherhood of 

Teams te rs v. Un i ted States , 431 U .S . 324 , 

358 , 97 S.Ct. 1843 , 1 866 (1977) . In 

footnote 44, e xp lai ni ng  the above q u o t a ­

tion, the Court sa i d-

An e m p l o y e r’s isolated decision 
to reject an applicant who belongs 
to a racial minority does not show 
that the rejection was racially 
based.

i V.

Plaintiff takes a shotgun approach 

in this case. He testified he e x p e r i ­

enced dis cr imi na t io n on a daily basis 

in his office and in the perfor ma nce  of 

his duties. He said that after he was 

promoted from a GS-07 to Educational

A67



Specialist G S - 1710 - 1 1 , that he was 

expected to do his writ ing  without 

assistance. He said there was d i s c r i m i ­

nation because he was not given a s s i s ­

tance with his writing after his p r o m o ­

tions however, It Is clear from the 

evidence that a person in such a grade 

could not expect assistance. He said he 

was di s cri min at ed against because the 

white writers did not discuss their 

writing with him; that blacks were 

referred to as grinning hyenas; that 

persons talked of inferiority of blacks; 

that some of the supervisors or writers 

were hesitant to cooperate with him; and 

that one of the supervisors refused to 

discuss his writings with him. As to the 

last assertion, he said that the s u p e r ­

visor suggested he take a training course 

which was being offered, but he did not 

do so. He complained that Oben Johnson,

the black EEO Officer, was one of the

A68



persons who dis cri mi nat ed  against him and 

who tried to block him from reinstatement 

to his former position; that other black 

supervisors di scr i mi na t ed  against him, 

including General Small and black 

females. in fact, he said everyo ne  d i s ­

cri minated against him, blacks and all.

He said he had applied for 15 or 20 jobs 

at Fort Eustis and that he had in fact 

filed some 16 complaints against the 

Army .

Among his claims Is that the ranking 

panel for the vacancy number 300-76, 

Education Specialist G S - 1710 - 12 , of 

September 1976, was improperly c o n s t i t u ­

ted, it is not contested that a person 

of a 1 ower grade may not be a member of 

a rating panel for a position of a

_____------ ----- - A69

 ̂One of the exhibits was a s t a t e ­
ment written by plaintiff in which he 
said General Small had been very fair 
in regard to his evaluation.



higher grade. Plaintiff says Mrs. Donna 

F o u s h e e , G S -9 , served as a ranking panel 

member to fill the vacancy for the GS-12 

position. However, it is clear Donna 

Foushee did not do rating on this panel 

or vote. Homer Thompson (white) and 

Horace Montgomery (black), who were panel 

members, testified that they had no 

r e c o 1 lection of Donna F o u s h e e 1s doing 

anything except handling the papers; that 

her job was to advise them. Thompson and 

Montgomery each said they did not know 

plaintiff, or his race, at time of their 

rating of him, and that the grading was 

based entirely on the information at hand 

and the criteria to be used in rating. 

Montgomery, a former Lieutenant Colonel 

in the Army, said the rating panel worked 

two of three days on the ratings; that 

they went through the information f u r ­

nished and matched up the information 

with the criteria, and that he and

A? 0



Thompson gave the same ratings.

Montgomery testified that from a review 

of p 1 a i n t i f f * s file and information, 

plaintiff did not have the qualifications, 

and that he asked why J o h n s o n’s a p p l i ­

cation was there, because it was clear he 

did not have the quali fications. He was 

cor rob ora ted  by the testimony of Thompson, 

who said that no statement or discussion 

of race took place during the rating; and 

that Donna Foushee was there to advise 

them on their duties.

On an appeal to the Army, the Army 

raised the issue that Donna Foushee was 

not a qua lified member of the panel 

because she was not a Grade 12, and that 

a p roced u ra 1 error had occur red as Donna 

Foushee should not have been named to 

the panel. It found no discrimination, 

but directed the panel be reconstituted. 

This was done. Upon review, it was

A71



found that wh ile the procedural error 

occurred of having Foushee on the panel, 

the remaining two co nstituted a proper 

p a n e l , ^ an(j nothing had been done which 

affected Johnson. Oben Johnson, the EEQ 

Officer, agreed this was proper and 

cor r e c t .

Richard Van Deren was the selectee 

for the position. L i eutenant Colonel 

Hann um was the one responsible for 

selecting Van Deren from the list.

Because of his rating, Johnson was not on 

the list. After interviewing all on the 

list, Hannum determined Van Deren and 

Franc i ne Perry were the best qualified 

persons and selected them. A comparison 

of the qua li fications clearly demonstrates 

that Van Deren was much better qualified 

than plaintiff. He had an unde rg rad ua te 

_____________ A?2

2 Regulations do not prescribe how 
many shall be placed on a panel.



degree In English and had taught English 

some five years. He returned to graduate 

school on a fellowship to study E d u c a t i o ­

nal Adm i nis tration and obtained his 

m a s t e r’s degree and thereafter a Ph.D in 

Educational A d mi n is tr a ti on  at Virginia 

Interment, wh ere he was responsible for 

Planning and Design of Planning from 

1970 to 1975. From there he went to 

Engineering School at Fort Belvoir, wh ere 

he did Research and instructional Systems 

for about eleven months. He developed 

the plan for Training Ma nageme nt I ns 1 1 * 

tute to modernize training and was p r o ­

ject offIcer to assist schools in 

modernizing training programs. He was 

at a G S - 1 1 grade.

While it is not feasible or n e c e s s ­

ary to deal with each of p l a i n t i f f’s 

complaints, some of them call for 

c o m m e n t .

73



1. He complained everyone d i s c r i ­

minated against him, including Ofaen 

Johnson, the EEO Officer. Johnson c o m ­

plained the EEO Officer would not 

process his complaints and did nothing 

for him. The evidence Is to the 

contrary. The EEO Officer said It was 

his duty to try to resolve any complaint 

made; that if It could be done through 

the supervisor, It should be done that 

way; that some of the complaints made by 

Johnson were handled this way; that some 

of Johnson's complaints were entirely 

without merit, or not timely filed, or 

did not comply with regulations and he 

refused to file them.

2. Johnson comp 1 a i ned of lack of 

training, and he recommended it be given 

him; that a se lection  of courses was 

formulated so that Johnson could attend, 

but Johnson refused saying it would be



an indication he was not qualified,

3, The EEC Officer said that Johnson 

complained that it had been more than a 

year since he had had a pe rformance

rating, and when it was made aval 1a b 1e ,

Johnson objected to it as not enough

time to e v a 1ua te him.

h. The EEO Off i ce r said that John

son complained of the location of his 

desk in the working office where he was 

assigned and of difficulty with his 

supervisors and others in the office; 

that upon this complaint, Colonel Small 

recommended Johnson be assigned to 

another office and another supervisor; 

that when this was offered to Johnson, 

he refused it, saying let them (meaning 

the supervisor and others in the office) 

move, as he was going to stay where he 

was,

5. EEO Officer said after Johnson

A75



had been reinstated in 1973, it was 

upon his recommendation that Johnson was 

promoted to a G S -1 1 , but Johnson contends 

the EEO Officer would not assist him.

6. Though Johnson said others made 

derogatory remarks about him or blacks, 

he never produced a witness to c o r r o b o ­

rate his claim. On the contrary, n u m e ­

rous witnesses, including blacks, said 

such sta tements were not made.

7. Johnson co mplained that the 

rating panel acted improperly because it 

permitted information concerning Van 

Deren to be submitted. The facts 

establish that prior to the time for 

submitting applications for the position 

in question, Van Deren sent his updated 

information to Fort Eustis and Fort 

Monroe to be placed in his personnel 

folder. It was in the Personnel Office 

at Fort Eustis, but by some means had 

not been placed in his folder when the

A76



folders were delivered to the rating 

panel. While the panel was in process 

of doing the ratings it became known the 

information was not in the folder. The 

Personnel Office sent the information to 

be put in the folder. No improper infer 

mation was supplied nor any advantage 

given. The error was that of the Person 

nel Office in failing to place informa- 

tion timely received in the personnel 

f o 1de r.

8. Johnson says blacks were not 

allowed to pa rticipate in ISO training. 

The Chief of Staff of the Faculty and 

Development Division at Fort Eustis said 

that the T R ! was the forerunner of IS D ; 

that the TRI Workshop Program at Eustis 

did not start until November 1976; that 

prior to that time such training was 

given at Fort Lee, and that the Army 

only began the courses in early 1976.

A 77



Contrary to J o h n s o n’s complaints,

Colonel Hannum testified that Johnson did 

receive the !SD training, and that all of 

the employees received it. He said he 

wanted everyone to take the course, but 

that Johnson was reluctant to attend.

He remembered J o h n s o n’s being in class 

because Johnson went to sleep; that he 

passed the word down the line for them 

to jar J o h n s o n’s desk and awaken him.

While Johnson says no blacks were given 

the training, F ranc i ne Per ry (black) 

received her certi fic at e showing she 

received the training in 1976, and it 

was clearly e st ab lis he d that the early 

classes included blacks.

9. Though Johnson said he was 

qualified to fill any position at Fort 

Eustis, he was not supported in his 

evaluation of himself by a single witness, 

or by the record. His expert witness,

A 78



Freda Clark, who said she had agreed to 

assist Johnson and testify on a c o n t i n ­

gent bas i s--that is, she wo uld be paid 

if Johnson recovered in the s u it -- sai d 

she made an e va lua ti on of the q u a l i f i ­

cations of the applicants and she felt 

that Johnson was as well qualified as 

anyone. However, she never exami ne d any 

of his work products or the writings 

which he did in his work assignments.

J o h n s o n’s work at Eustis was 

described thusly--

(a) Francine Perry, one of those 

chosen for the G5-12 position which 

Johnson sought, said she was a c o ­

worker of Johnson from 1967 to about 

1979; that she obser ved  the quality of 

J o h n s o n’s work, as she was required to 

review it, and his writings were below 

the average; that his att end an ce  was not 

the best; and she had often seen him

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asleep at his des k.

(b) Johnson was obse rved asleep at 

his desk several times a week by witness 

Powers, who saw her su pervisor wake him. 

She said Johnson co ntributed very little 

to the office. Lieutenant Colonel 

Hannum observed Johnson asleep in his 

class, and at his desk, because his 

sup ervisor took a p i ct u re of him.

(c) Johnson commenced his work 

under witness Cox. She said she was 

del i gh ted when she read his summary of 

qua lificat ions, but his writi ng  was not 

good; there were errors in grammar, 

m i s s p e l 1 ing, and on one paper there were 

18 c o m m e n t s ; that his writing was below 

average; that she suggested he go to an 

Engl i sh class, but he did not do s o ; 

that she had seen him asleep at his desk 

on more than 10 occasions; that she 

assisted him in eve ry way that she could,

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but that at his grade level he was s u p ­

posed to be able to handle his work.

She was asked by Johnson's counsel what 

errors had occurred and how she r e m e m ­

bered the errors. She replied she r e m e m ­

bered he left out a verb in a sentence, 

and she was shocked at it.

(d ) Johnson complained that when he 

was reins tated in 19 73 ® mon i tor i ng was 

done of him and his work. EEO Officer 

said it was done to assure he received 

proper treatment, and was not treated 

differently from others. This was c o n ­

firmed by Thornton, the Personnel Officer 

who said that upon Johnson's r e i n s t a t e ­

ment, It was d i rected he receive proper 

orientation, and that reports were that 

eve rything was all right.

Plaintiff's charges of d i s c r i m i ­

nation are without factual support, as

are his other contentions. The record is 

clear that there is no evidence of

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dis cr imi na t io n  in selection of the rating 

panels, nor is there any evide nc e of 

discri mi nat io n by the panels. The panel 

members were furnished with the rating 

criteria which they were to use and the 

records and information on the a p p l i ­

cants. They were to be rated on their 

job related exp eri en ce which met the 

criteria of the job they sought. As 

Colonel Montgomery said, they were fu r­

nished with the information on the c a n d i ­

dates, and the quali fic at ion s required; 

that the information they were seeking 

was set forth in the folders given them. 

Though plaintiff says he was not given 

as high a rating as he felt he was 

entitled to, he points to no facts 

justifying a different rating than the 

one received. No one qu estioned his 

prior Army experience, or his training, 

or his college degrees, but the prior

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training and ex perience did not meet 

the qualifying criteria for the position 

he sought.

Hill v. Wes tern E l e c t r i c , s u p r a , 

makes it clear that an employer is 

"entitled to adopt se lection  standards 

based upon demonst rat ed  ability, proper 

qualifications, expe r i ence and length of 

service to consider such things as job 

p e r f o r m a n c e , willi ngn es s to accept 

responsibility and de p e nd ab i l i t y ."  596 

F . 2 d 105.

The Court cannot subs tit ut e its 

judgment for that of the rating panels 

or of the selection officer. The issue 

he re is not one of w h e th er  panels were 

co nstituted in strict co mpliance with 

regulat ions . The issue is, wh e th er there 

was dis cr i mi n at io n  against plaintiff 

because of his race. Since the evidence 

fails to show any d is cr imi na ti on  because

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of plaintiff's race, the inquiry ends as

there Is no other basis for rei 

this action. The complaint is 

D I S M I S S E D .

United States Di strict 

N o r f o l k ,  V i r g i n i a  

December 18, 19 80 •

I e f in 

the re fo re

Judge

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